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 Bullitt County Attorney violated the Open Records Act in partially denying Norman R. Lemme's June 15, 2000, request for various records in the personnel file of an employee of the County Attorney's office, Dawn Hester. For the reasons that follow, we find that the County Attorney's response was partially inconsistent with the Act.
On June 15, Mr. Lemme requested copies of "the complete personnel file of Dawn Hester, including but not limited to any educational background, including any continuing education, complaints against Ms. Hester, reprimands concerning any complaints, hire date, and salary. " In a response dated June 20, 2000, Assistant Bullitt County Attorney Mark Shouse partially denied Mr. Lemme's request. Although he agreed to release records reflecting Ms. Hester's date of hire and salary, Mr. Shouse relied on KRS 61.878(1)(a) in withholding records documenting her educational background and participation in continuing education programs. He explained that the Attorney General has only compelled disclosure of such records "when there is a specific educational requirement for the position held by the public employee . . . [and] such is not the case with Ms. Hester's position." Further, he relied on KRS 61.878(1)(i) in withholding "complaints against Ms. Hester" and "reprimands concerning any complaints," asserting that "complaints against Ms. Hester, if any, would be exempt" as correspondence with private individuals, and that "reprimands concerning complaints [are excluded from inspection as] preliminary drafts and notes other than correspondence which is intended to give notice of final actions of a public agency. " Mr. Shouse noted that there "are no documents which fit this description in Ms. Hester's file." In general, Mr. Shouse refused to honor Mr. Lemme's request for "a complete copy of [Ms. Hester's] personnel file" based on "Kentucky case law and opinions of the Office of the Attorney General" holding that blanket requests for information that do not identify particular documents need not be honored.
We agree with Mr. Shouse that a public agency is not obligated to honor a broadly worded request for an employee's personnel file. This position is promised on the notion that:
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; see, for example, 97-ORD-66. If Mr. Lemme wishes to inspect documents contained in Ms. Hester's personnel file, other than those specifically noted, he may wish to resubmit his request and identify particular documents contained therein.
We do not agree with the Bullitt County Attorney's Office that KRS 61.878(1)(a) authorizes nondisclosure of records reflecting Ms. Hester's educational background. In view of the public's interest in insuring that public agencies discharge their duty to hire individuals who qualify by virtue of education and experience for the positions they hold, this office has 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; OAG 91-48. Fundamental to this position is the recognition that "one does not typically work [or attend school] in secret." OAG 89-90, p. 7. That the level of education attained is not directly related to a specific job qualification in Ms. Hester's case does not alter our analysis. So long as her educational level is "reasonably related to qualifying for public employment, " it must be disclosed. OAG 89-90, p. 10. This reasoning can be extended to records reflecting compliance with continuing education requirements. To the extent that these records reasonably relate to her continued employment in the County Attorney's office, they too must be disclosed. The Bullitt County Attorney may, of course, redact any information appearing on Ms. Hester's application, resume, or other pertinent records, that is of a purely personal nature and unrelated to her public employment, such as home address, social security number, and marital status. 97-ORD-66; 00-ORD-90; 00-ORD-126.
By the same token, we do not agree with Mr. Shouse that any complaints leveled against Ms. Hester, and upon which final action has been taken, including the decision to take no action, can properly be withheld. Although he indicates that Ms. Hester's file contains no written reprimands, Mr. Shouse does not deny the presence of complaints in her file. Complaints against public agency employees, and disciplinary records generally, have traditionally been treated as open records. OAG 78-133; OAG 91-20, 95-ORD-123; 97-ORD-66; 00-ORD-104.
This principle of law applies regardless of whether the complaints made are substantiated and disciplinary action imposed, or unsubstantiated and no action taken. On this subject, the Attorney General has opined:
Public employees against whom false allegations have been made will be vindicated by disclosure of records revealing that no disciplinary action was taken against them. Conversely, public employees who are found to have engaged in misconduct will not escape public scrutiny. In either case, disclosure of the complaint, the final action taken, and investigative records incorporated into that final action, will evidence whether the public agency faithfully discharged its duties. 97-ORD-121, p. 8. "It is only through full disclosure of complaints, both substantiated and unsubstantiated, that the public can effectively monitor public agency action, and insure that the agency is promptly, responsibly, and thoroughly investigating and acting upon allegations of employee misconduct. " 94-ORD-76, p. 6. Moreover, "an individual who is impelled to file a complaint against a public agency employee is more likely to act responsibly [, and less likely to make false accusations] . . ., if the entire process is exposed to the light of public scrutiny. "
97-ORD-121, p. 7.
If any complaints have been made against Ms. Hester, and the Bullitt County Attorney has taken final action relative to the complaints, including a decision that the allegations in the complaint were unsubstantiated and no disciplinary action was warranted, those complaints must be disclosed. If Ms. Hester's file contains no complaints, the County Attorney should specifically so state as he has done in denying the existence of any reprimands in her file. In all other material respects, we affirm the Bullitt County Attorney's disposition of Mr. Lemme's request.
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 proceedings.