Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Harlan County Board of Education violated the Open Records Act in partially denying David H. Dixon's May 18, 2000, request for information and records pertaining to Edward G. Clem, principal of Cumberland High School. For the reasons that follow, we find that the Board's response was procedurally deficient, but substantively correct.
In his May 18 request, Mr. Dixon petitioned the Board for access to:
. the teaching application submitted [by Mr. Clem] for employment in the Harlan County School System for 1988, the classes taken, what year taken, and from what institution . . .[;]
. the same information for principal certification [;]
. the same information for superintendent certification [;]
. all test dates that are required by state law for certification (NTE exams, etc.).
Mr. Dixon emphasized that he was not seeking personal information contained in these records, and included a redacted copy of his own college transcript "as an example" of how to avoid disclosure of such information. Having received no written response to his request, Mr. Dixon initiated this appeal on May 30, 2000. Three days later, Assistant Superintendent Gary Hensley notified Mr. Dixon that the Board's attorney had advised him "that personnel records such as those . . . requested for Mr. Edward Clem are not subject to the open records law."
Upon receipt of this office's notification of Mr. Dixon's open records appeal, Harlan County Board of Education attorney Johnnie L. Turner issued a supplemental response in which he indicated that he had "advised the School Board to provide Mr. Dixon with all information to which he is legally entitled . . . ." Continuing, he noted that some of the information Mr. Dixon requested is not retained by the School Board, and asserted that the Board is not legally obligated to "answer such questions as all test dates that are required by state law for certification . . . ." In subsequent correspondence directed to this office, Mr. Turner indicated that he had directed the Superintendent to furnish Mr. Dixon with copies of Mr. Clem's teaching application and certification. He stated that, pursuant to KRS 61.878(1)(a), Mr. Clem's social security number, home telephone number, home address, "and other important information," had been redacted. Noting the ambiguity of some of Mr. Dixon's requests, Mr. Turner advised that he would not be permitted to inspect Mr. Clem's transcripts, and reiterated that the School Board would not honor his request for information, namely test dates required by state law for certification.
It is the opinion of this office that the Harlan County Board of Education's failure to respond to Mr. Dixon's request in writing, and within three business days, constituted a violation of KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The date stamp appearing on Mr. Dixon's request indicates that it was received on May 19, 2000. The Board's response was issued on June 2, 2000, some nine business days after receipt, and six days after the statutory deadline. "The procedural requirements of the Open Records Act, " this office has often observed, "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." See, for example, 94-ORD-128, p. 2. We urge the Board to review the cited provision to insure that future responses conform to the requirements of the Act.
With respect to the Board's reliance on KRS 61.878(1)(a) as a basis for partially denying Mr. Dixon's request, we affirm its actions. That exception authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]
In Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), the Kentucky Court of Appeals opined that "we . . . determine whether . . . an invasion is warranted by weighing the public interest in disclosure against the privacy interests involved." Continuing, the court observed:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act . . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink at 828, 829. Accordingly, if a public record, in this case a personnel record, contains information of a personal nature, we are obligated to determine if the privacy interests that are implicated outweigh the public's right to know that public agencies are properly executing their statutory duties, including the duty to insure that their employees are duly qualified to hold the positions for which they were employed.
In defining the public's right of access to public employee personnel records, the Attorney General has recognized that KRS 61.878(1)(a) "applies only to matters entirely unrelated to the performance of public employment. " OAG 78-133, p. 3. "The privacy rights of the public employee extend only to matters which are not related to the performance of his work." OAG 80-43, p. 3. In a later opinion, we summarized our views:
A personnel folder of a public employee, by its very nature, is a mixture of documents which are subject to inspection and which may be excluded from . . . inspection. Rather than a "shotgun" approach or engaging in a . . . fishing expedition, the request should . . . [be] specific as to the kinds of records and documents which are the subject of the request to inspect. "
OAG 88-53, p. 3. Conversely, the Attorney General has recognized that records relating to the public employee's public duties, and his qualifications for the position he holds, are subject to public inspection inasmuch as the public's interest in disclosure outweighs any remote privacy interest that might be implicated. OAG 76-717; OAG 87-37; 94-ORD-36; 97-ORD-66.
Based on the authorities cited, we conclude that the Harlan County Board of Education acted consistently with the Open Records Act in furnishing Mr. Dixon with redacted copies of Mr. Clem's job application and teacher certification. Clearly, no public interest would be served by disclosure of personal information such as his social security number and home address. See Zink , above. Disclosure of the remainder of these records, on the other hand, advances the public's right to know that the Board is faithfully performing its duty to insure that its employees possess the requisite qualifications for the positions they hold. We affirm the Board's partial denial of Mr. Dixon's request on the basis of KRS 61.878(1)(a) and KRS 61.878(4). We note, however, that it is incumbent on the Board to more specifically identify the "other important information" withheld. As noted, "the language of [KRS 61.880(1)) directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Consistent with their position, the Board should immediately advise Mr. Dixon of the nature of the "other important information" withheld, and the statutory basis for the partial denial of this portion of his request.
We find no error in the Board's refusal to furnish Mr. Dixon with a copy, redacted or otherwise, of Mr. Clem's transcripts. In OAG 89-90, the Attorney General held that college transcripts are not subject to inspection. In contrast, this office declared that "inspection of an employment application or resume must be permitted regarding work experience and educational levels attained . . . that are reasonably related to qualifying for public employment. " OAG 89-90, p. 10. See also, OAG 91-48. We continue to ascribe to the view that the public's right to know does not extend to such minutia as classes taken and grades received.
Further, we affirm the Harlan County Board of Education's refusal to honor Mr. Dixon's vaguely worded requests for information such as "all test dates that are required by state law for certification . . . ." The Attorney General has long recognized that "the purpose of the Open Records law is not to provide information but to provide access to public records which are not exempt by law." OAG 79-547, p. 2. Although information may be gleaned from these records, it is a public agency's duty to make public records available for inspection and copying. Public agencies are not required to gather and supply information independent of that which is set forth in public records. OAG 87-81, p. 5 (holding, "Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation of and production of specific information"). The Board is therefore not required to furnish Mr. Dixon with information pertaining to test dates.
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.