Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Open Records Act in denying Christophe G. Stewart's January 20, 2000, request for records relating to University employee Brenda Lynn Overstreet. For the reasons that follow, we find that the University's reliance on KRS 61.878(1) as a basis for issuing a blanket denial of Mr. Stewart's request was misplaced.
In his January 20 application to inspect public records, Mr. Stewart requested access to:
1. Records of any and all calls made from the telephone of or any telephone used by Brenda Lynn Overstreet, Physiology and Bio-Physics Department, University of Louisville, to include local and long distance, for the past twelve months.
2. Attendance records and time sheets for Brenda Lynn Overstreet, from date of hire to present.
3. Job description(s) for the position(s) held by Brenda Lynn Overstreet from date of hire to present.
4. Personnel file of Brenda Lynn Overstreet, including but not limited to, academic/educational history, previous employment history, job application and job description.
5. Any and all files concerning any administrative action(s), disciplinary or otherwise, taken by, on behalf of or against Brenda Lynn Overstreet from date of hire to present.
6. A copy of any and all personal information on the computer used by Brenda Lynn Overstreet and any and all disks, hard drives, tape drives or otherwise recorded. The request is specifically not asking for any University of Louisville records or business or academic documents.
Mr. Stewart is an attorney representing Samuel T. Davenport in a civil action filed by Ms. Overstreet against him.
On January 24, 2000, University of Louisville's custodian of records, Dr. William J. Morison, responded to Mr. Stewart's request. He advised Mr. Stewart that due to off-site storage of many of the records identified in his request, the University would require up to one week to "respond further." One week later, Dr. Morison issued a lengthy response in which he addressed each of Mr. Stewart's six requests. He agreed to release for inspection all available records of calls made from the telephone assigned to Ms. Overstreet, all available time sheets submitted by Ms. Overstreet, all job descriptions for positions held by Ms. Overstreet, and all nonexempt portions of Ms. Overstreet's personnel file. Dr. Morison refused to release personal information contained in Ms. Overstreet's personnel file, such as social security number, home address, and home phone number, as well as records of any disciplinary actions involving Ms. Overstreet, her evaluations, and any personal files on her office computer. As the basis for denying Ms. Stewart's access to these records, Dr. Morison invoked KRS 61.878(1)(a). With respect to the final category of documents, Dr. Morison questions whether personal files on an office computer could properly be characterized as "public records. "
On February 1, 2000, Dr. Morison issued a supplemental response to Mr. Stewart's request. He advised:
This afternoon I was informed by Michael R. McMahon, who represents Brenda L. Overstreet, that you represent a party involved in litigation with her. The Kentucky Open Records Act cannot be used by a party to litigation. Responses should be via the discovery process under the civil rules of procedure. KRS 61.878(1) provides, in part, that "no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. " The Civil Rules at CR 26.01 provide that discovery may be obtained only by certain methods which do not include an open records request. Therefore I am denying your request to inspect the Overstreet records.
This appeal followed.
In his letter of appeal, Mr. Stewart asserts that the University violated both the spirit and the letter of the Open Records Act "by invoking the Civil Rules discovery exceptions." He notes that the University is not a party to the lawsuit involving Mr. Davenport and Ms. Overstreet, "and has not been involved in the matter." Relying on OAG 82-169, Mr. Stewart asks that this office find that the University's blanket denial of his request constitutes a violation of the Open Records Act, and that we specifically affirm his right of access to Ms. Overstreet's entire personnel file, as well as any personal files on her office computer which were "created and stored on a public agency's property." While we concur with Mr. Stewart in his view that the University's reliance on KRS 61.878(1) to deny him access to all records identified in his request was misplaced, and that the University's invocation of KRS 61.878(1)(a) as authority for its decision to withhold any disciplinary records in Ms. Overstreet's personnel file, and any personal files on her office computer, was not supported by law, we affirm the University's decision to withhold purely personal information appearing in her personnel file as well as performance evaluations.
University's reliance on KRS 61.878(1)
We find no support for the University of Louisville's reliance KRS 61.878(1) as the basis for issuing a blanket denial of Mr. Stewart's request. That statute provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery [.]
KRS 61.878(1) (emphasis added). The Attorney General has consistently rejected the argument that a public agency's duties under the Open Records Act are suspended in the presence of litigation even when the agency is a party to the litigation. In the appeal before us, the University is not a party to the Overstreet-Davenport civil action.
In 98-ORD-39, the Attorney General was called upon to construe KRS 61.878(1) in the context of a public agency's denial of a records request submitted by a party to litigation with the agency. In that decision, we held that "although the Attorney General has discouraged the use of the Open Records Act as a substitute for discovery, we are bound to follow the line of opinions issued by this office from 1982 to the present holding that the presence of litigation between the requester and the public agency does not suspend the agency's duties under the Act." 98-ORD-39, p. 2. We traced the evolution of this proposition, factoring in legislative amendments to, and judicial interpretations of, the Open Records Act. Thus, at pages 2 through 4 of 98-ORD-39, we observed:
In OAG 82-169, this office considered the propriety of the Jefferson County Public Schools' denial of attorney John W. Potter's open records request on the grounds that the school system was involved in litigation and the records would not be discoverable under the civil rules. At page 2, we rejected the school system's argument, commenting:
Elaborating on this view, in a subsequent opinion the Attorney General observed:
OAG 89-53, p. 4. Shortly after OAG 89-53 was issued, we confirmed our position, asserting:
With particular reference to KRS 61.878(1), upon which the University relies, the Attorney General has construed this provision to mean that:
should an agency deny a request, submitted by a party to a civil action , for properly excludable public records which are related to the action , and which are also protected from pretrial discovery by the Rules of Civil Procedure, and the requester/ party subsequently challenges that denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/ party, though it might otherwise do so in its discretion. . . . It does not . . . alter our view that an agency's duty under the Act is not suspended in the presence of litigation.
95-ORD-18, p. 4. Prior to the issuance of this decision, the Attorney General had held that KRS 61.878(1) could not be invoked by a public agency to deny non-litigants access to public records which relate to a pending civil action. 94-ORD-19. It was this decision that the Court of Appeals affirmed in
Department of Corrections v. Courier-Journal and Louisville Times, Ky.App., 914 S.W.2d 349 (1996). In subsequent open records decisions, the Attorney General confirmed that KRS 61.878(1) does not prohibit access by a party litigant to nonprivileged, nonexempt public records in the custody of a public agency against which the litigant had brought suit or by which he had been sued. 95-ORD-18; 96-ORD-138; 98-ORD-39; 98-ORD-87. Only if the records to which the party litigant requests access are both exempt and nondiscoverable does KRS 61.878(1) authorize nondisclosure. Compare 98-ORD-15 (records requested by party litigant which pertain to pending litigation, and fall within the attorney client privilege, may be withheld under KRS 61.878(1) because they are protected from pretrial discovery by the Rules of Civil Procedure) .
As noted, the University of Louisville is not a party to the pending civil action filed by Ms. Overstreet against Mr. Davenport, and cannot properly rely on the limited protection from records disclosure afforded by KRS 61.878(1). Nor, for that matter, are the majority of the requested records nondiscoverable or otherwise exempt. Even if the University were a party, it could not rely on the cited language to authorize blanket nondisclosure of public records. Clearly, Mr. Stewart "stands in relationship to the agency under the Open Records Act as any other person," OAG 82-169, p. 2, and enjoys the same right of access to nonexempt records as the public, generally, enjoys.
University's reliance on KRS 61.878(1)(a)
In its January 31 response to Mr. Stewart's request, the University agreed to disclose Ms. Overstreet's telephone records, time sheets, job descriptions, and other nonexempt portions of her personnel file. KRS 61.878(1) notwithstanding, we find that the University is obligated to disclose these records. Such records have consistently been treated as nonexempt public records for purposes of the Open Records Act. See, e.g. 97-ORD-66 and authorities cited therein (nonexempt records in personnel files); see, e.g. OAG 86-21 (telephone records). Moreover, we find that the University must also release for inspection and copying any records reflecting disciplinary actions against Ms. Overstreet and any personal files in her office computer. The weight of legal authority in Kentucky does not support the University's view that KRS 61.878(1)(a) authorizes nondisclosure of these records. However, we affirm the University's reliance on KRS 61.878(1)(a) as a basis for denying Mr. Stewart access to those portions of Ms. Overstreet's personnel file that contain such purely personal information as social security number, home address, and home telephone number, as well as her performance evaluation. The Attorney General has recognized that the protections afforded by KRS 61.878(1)(a) do, in fact, extend to these records, or portions of records. See, e.g., 97-ORD-66 and authorities cited therein (exempt records in personnel file protected by KRS 61.878(1)(a); see 99-ORD-42 and authorities cited therein (public employee evaluations excluded from public inspection by KRS 61.878(1)(a)).
In analyzing the propriety of release of records relating to complaints against public employees and public employee discipline, the courts and this office have consistently recognized that "disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know." OAG 88-25, p. 3; see also,
City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1983);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983);
Kentucky Board of Examiners of Psychologists v. Courier Journal, Ky., 826 S.W.2d 324 (1992); OAGs 81-127, 81-291, 83-41, 84-315, 85-126, 85-136, 89-13, 89-73, 89-74, 91-33, 91-45, 91-62, 91-81, 91-90, 92-34, 94-ORD-27, 95-ORD-47; 96-ORD-86; 99-ORD-105.
Disclosure of such records is not, in general, prohibited by KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. This view is premised on the notion that:
Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment . . . this office has consistently held that the public has a right to know about the employee's misconduct and any resulting disciplinary action taken against the employee. These opinions hold, either no privacy interest existed under the facts, or if a cognizable privacy interest existed that it was outweighed by the public's right to be informed.
OAG 91-41, p. 5. In weighing the right of individual privacy against the right of the public to monitor the conduct of its servants, we find that complaints of misconduct and consequent disciplinary action, or the decision to take no action, are matters of legitimate public concern which outweigh the privacy rights of the public servant.
Whether the University of Louisville is obligated to disclose personal files on Ms. Overstreet's office computer is a closer question. In 99-ORD-112, this office opined that "review of records created on public equipment enables the public to monitor the use of equipment or services purchased or leased by a public agency with public funds for public purposes." 99-ORD-112, p. 1, citing 96-ORD-238. There, we held that a school district improperly withheld copies of pornographic materials allegedly copied from an internet site by a school district employee, declaring that "records which were obtained on public time and on public equipment are, in our view, public records. " Id. This decision echoes a line of Attorney General's opinions recognizing that the use of public equipment at public expense does not, in general, implicate KRS 61.878(1)(a). For example, in OAG 86-21 this office held that telephone records of the Legislative Research Commission were subject to public inspection.
In subsequent opinions, this logic was extended to records reflecting the names and facsimile numbers of all facsimile transmissions made for personal, and not agency purposes on agency equipment (96-ORD-238), a tape recording documenting a personal conversation of some duration between a Division of Fire and Emergency Services employee and another employee on a telephone extension dedicated to public use for 911 emergency calls (98-ORD-31), and telephone records for calls originating from a telephone line used in a legislative leadership office (98-ORD-92). Common to each of these decisions is the recognition that public equipment purchased with public funds, and used by public employees on public time, is intended for purposes related to public service. The public's interest in disclosure of records documenting use of public equipment is therefore generally greater than the privacy interests of public employees engaged in personal use of such equipment and thus diverted from their official duties.
Although this office has never specifically addressed the question whether a public agency can properly withhold an employee's personal files on a computer purchased with agency funds, we believe that the cited authorities, and in particular 99-ORD-112, have a direct bearing on resolution of the issue. In 99-ORD-112, the school district failed to advance any statutory argument supporting nondisclosure of records reflecting apparently improper personal use of the district's computers and internet service. Our analysis turned on the compelling public interest served by disclosure of the records. The same public interest is served by disclosure of personal files on University-owned computers. In the appeal before us, however, the University invokes KRS 61.878(1)(a), asserting a nonspecific privacy claim on behalf of Ms. Overstreet. If, after reviewing Ms. Overstreet's personal files on her office computer, the University identifies a privacy interest in particular files that is superior to the public's interest in disclosure, it may withhold those files. This position does not, however, authorize wholesale nondisclosure of the files, and it is incumbent on the University to articulate a basis for denying access to the individual personal files in terms of the requirements of the statute.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.