Request By:
[NO REQUESTBY IN ORIGINAL]
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 City of Henderson properly relied on KRS 61.878(1)(a), (i), and (j), in denying Gleaner staff writer Frank Boyett's June 26, 2000, request for a copy of "the [summary] evaluation of [City Manager Jeff Broughton] for the past year as conducted by the Henderson City Commission on or about May 23, 2000, [or, if none exists,] the individual evaluations created by the respective members of the board of commissioners." For the reasons that follow, we conclude that the city properly relied on KRS 61.878(1)(j) in initially denying Mr. Boyett's request. During the pendency of this appeal, however, the city adopted Mr. Broughton's summary evaluation as the basis for awarding him a 1.32 percent pay increase, and the protections afforded by that exemption were forfeited. Accordingly, we find that, with the exceptions noted below, the summary evaluation should now be disclosed.
In a letter dated July 3, 2000, City Attorney, Joe E. Ternes, Jr., argued that disclosure of Mr. Broughton's evaluation would constitute a clearly unwarranted invasion of personal privacy, and was therefore prohibited by operation of KRS 61.878(1)(a). In addition, Mr. Ternes asserted that "the requested materials contain preliminary drafts and notes and constitute preliminary memoranda in which opinions are expressed and are, therefore, exempt from public disclosure under the provisions of KRS 61.878(1)(i) and (j)."
In a supplemental response directed to this office following commencement of Mr. Boyett's appeal, Mr. Ternes elaborated on the city's position. He urged the Attorney General to adhere to the long-standing rule that a public agency employee's privacy interest in his evaluation is superior to the public's interest in disclosure. Acknowledging that the Attorney General has departed from this position on one occasion involving a school superintendent, who was deemed "ultimately responsible for the management of the [public agency] ," Mr. Ternes maintained that although the city manager has broad managerial responsibilities, he exercises these responsibilities in an environment that is subject to "a myriad of economic and social factors" that influence the city's performance. Accordingly, Mr. Ternes argued, "the city manager's performance is not the same as the city itself," and his expectation of privacy in his evaluation outweighs the public's interest in disclosure.
Additionally, Mr. Ternes asserted, the purposes underlying the evaluation process for Henderson's city manager and a school superintendent differ greatly. He explained:
A school superintendent is evaluated on an annual basis pursuant to the dictates of KRS 156.101. The legislature has mandated a comprehensive evaluation program for the stated purpose of ". . . providing a method by which the citizens of the Commonwealth can be assured of measures of accountability of the performance of certified school employees . . ." (KRS 156.101 (5)). It is submitted that this is a recognition of the comparatively closed environment of a school system and the necessity to inform the public as to its operation. This is quite different from the present case in that Mr. Broughton's annual evaluation is done pursuant to his employment contract to determine whether or not his salary will be increased. According to his contract, if his performance is satisfactory, his annual salary will be increased "in such amount and to such extent as the Commission shall determine desirable." 1
On this basis, Mr. Ternes concluded:
Mr. Broughton's evaluation is distinguishable from that of the school superintendent both as to the purpose for each and privacy expectations. The school superintendent was evaluated to inform the public on how well or poorly he and therefore the school system was performing. That was the purpose and an end unto itself. Conversely, Mr. Broughton was evaluated for the express purpose of determining a salary increase pursuant to his contract. Mr. Broughton's evaluation is only a means to an end, that is, whether or not a salary adjustment should be made.
In support of the city's position that KRS 61.878(1)(i) and (j) also authorize nondisclosure of Mr. Broughton's evaluation, Mr. Ternes cited 96-ORD-275 containing a statement of the rule governing employee evaluations, and holding that "the evaluation of [an employee's] performance is a matter of opinion and does not constitute any action on the part of the [agency] . . . . The action which the [agency] takes in light of the evaluation is what the public is entitled to know." 96-ORD-275, footnote 3, citing OAG 77-394. Mr. Ternes maintained that the evaluation documents "fall squarely within the provisions regarding preliminary materials, particularly KRS 61.878(1)(j), which excepts from disclosure "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." KRS 61.878(1)(i) is also applicable to the documents, Mr. Ternes concluded, because the evaluation forms filled out by the commission members constitute preliminary notes and correspondence not intended to give notice of any final action of the city. In closing, Mr. Ternes observed that final action on these preliminary documents will occur when Mr. Broughton's salary is adjusted by the commission as a result of the evaluation, and that at the time of such action, "if any part of the evaluation is disclosable, it is submitted that only the compilation or summary page should be disclosed and not the forms containing the commission members' written comments."
On August 8, 2000, Mr. Ternes amended his supplemental response to reflect events that occurred subsequent to its issuance. He explained that on July 25, 2000, the Board of Commissioners unanimously adopted a resolution increasing Mr. Broughton's salary by 2.7 percent (reflecting an across the board cost of living increase for city employees), and 1.32 percent (reflecting a "merit increase based upon his evaluation"). Mr. Ternes suggested that this formal action is, according to 96-ORD-275, what the public is entitled to know, and the issue of the city's denial of Mr. Boyett's request for Mr. Broughton's evaluation "should now be considered moot. " He rejected the idea that the public interest is served by disclosure of the individual commission members' scores and comments, arguing that the commission acts as a body, and that "in unanimously voting to pass the resolution increasing Mr. Broughton's salary as a result of the evaluation, the public's interest was subserved by knowing the will of the entire commission body." Mr. Ternes again asserted Mr. Broughton's privacy interest in the evaluation, declaring the issue of access to it moot, but requested that if this office holds otherwise, "only the summary page of the evaluation should be made public with all references to individual commissioners redacted."
In his letter of appeal, and supplemental correspondence, Mr. Boyett argues that the positions of city manager and school superintendent are closely analogous insofar as both are ultimately responsible for the management of the public agencies which they serve. He disagrees with Mr. Ternes' argument that the issue on appeal was mooted by the commission's final action on Mr. Broughton's merit increase, noting that the official vote "shed almost no light on how the commission" arrived at its decision. He explains:
The current city manager's . . . contract is coming up for renewal in November. Also, on Nov. 7, we plan to elect a new city commission. I consider it very likely that the performance of the city manager will become an election issue in this fall's campaign. Consequently, the public has a legitimate interest in knowing how its elected officials judge the performance of the man primarily responsible for carrying out the public's will. This is not idle curiosity.
Conceding the faint likelihood of obtaining access to the individual commissioners' evaluations, Mr. Boyett concludes:
It is the collective evaluation--the compilation of the individual commissioners' evaluations that is my primary goal here. That evaluation, to my way of thinking, represents final action on the part of the commission. It is not the opinion of an individual commissioner; it is the collective opinion--and decision--of the entire commission. KRS 61.805(3) defines final action as "a commitment or promise to make a positive or negative decision." The collective evaluation is such a commitment. It represents the commission's final action in a very real sense. It should be open to public view.
We agree with Mr. Boyett, but not for the reasons stated.
Mr. Ternes persuasively argues, and Mr. Boyett tacitly agrees, that the evaluations of Mr. Broughton that are completed by each of the commissioners and the mayor are in the nature of preliminary memoranda in which opinions are expressed and recommendations made, and thus quality for exclusion pursuant to KRS 61.878(1)(j). 2 These records are exempt from public inspection as among "the tools which a public employee or officer uses in hammering out official action within the function of his office." OAG 78-626, p. 2. Although we do not share Mr. Boyett's view that the summary evaluation itself, synthesizing the results of each of the individual evaluations, constitutes final agency action, we find that it was the basis for the commission's final action, namely, the decision to award Mr. Broughton a 1.32 percent merit increase, and thus forfeited its preliminary characterization. And while we continue to ascribe to the view that a rank and file public agency employee's privacy interest in his evaluation outweighs the public's interest in disclosure, we believe that because a city manager is ultimately responsible for the management of city government, the public's interest in his evaluation is heightened, and his expectation of privacy in that evaluation is correspondingly reduced. Thus, like a school superintendent's evaluation, the evaluation of the Henderson City Manager, whatever the purpose for which it is undertaken, is a nonexempt public record which must be released for public inspection.
With respect to the city's argument that Mr. Broughton's summary evaluation is protected from disclosure by KRS 61.878(1)(a), we turn to a line of decisions dating back to 1977 in which the Attorney General has held that the privacy rights of public employees in information of a personal nature that appears in a performance evaluation generally outweighs the public's interest in disclosure of the evaluation. OAG 77-394; OAG 79-348; OAG 80-58; OAG 82-204; OAG 86-15; OAG 89-90; 92-ORD-1375; 94-ORD-54; 94-ORD-132; 96-ORD-51; 96-ORD-275; 99-ORD-14; 99-ORD-42. In 92-ORD-1145, we departed from this position, declaring that the performance evaluation of a school system superintendent was subject to disclosure. This decision was premised on the notion that the public's interest in reviewing those portions of the superintendent's evaluation which have a direct bearing on the management of the school system is superior to the reduced expectation of privacy in that document which the superintendent might have. At page 4 of that decision, we expressly declined to extend this reasoning to rank and file public employees, noting:
We do not, in so holding, establish a rule of general application vis-a-vis performance evaluations. Nor do we depart from any opinion previously issued by this Office. [Footnote omitted.] Because the Superintendent is ultimately responsible for the management of the school system, his performance is of far greater interest to the public, and his expectation of privacy in the evaluation of that performance is correspondingly reduced. The same cannot be said of the other employees of a school system or any other public agency, since disclosure of their evaluations may spur unhealthy comparisons, breeding discord in the work place, and result in injury and embarrassment to the employee. We continue to ascribe to the view that an employee's right of privacy in his evaluation is superior to the public's interest in inspecting that evaluation. Our decision is limited to the facts presented in this case.
We affirmed this holding in 92-ORD-1375, declaring that anonymous evaluations of professors made by their students are exempt from public inspection pursuant to KRS 61.878(1)(a), and in 94-ORD-54, declaring that a city auditor's evaluation is exempt because she is not "'ultimately responsible for the management' of the City of Louisville." 94-ORD-54, p. 4. We again affirmed this position in 94-ORD-132, concluding that the evaluation of a chairman of a university department, although of great public interest, could properly be withheld pursuant to KRS 61.878(1)(a) because the chairman's privacy interests were superior to the public's interest in disclosure. We have since affirmed the position in at least three other open records decisions upholding agency denial of public access to the evaluations of public officials. See 96-ORD-256 (administrative evaluations of school district principals); 96-ORD-275 (job performance evaluations of two high ranking city employees); 99-ORD-137 (performance reviews of university administrators). Clearly, the Attorney General has scrupulously attempted to avoid establishing a general requirement of disclosure of public employee evaluations, and resisted efforts to extend the holding in 92-ORD-1145 to any other public officer or official.
Nevertheless, it is the opinion of this office that the position Mr. Broughton occupies is more closely akin to that of a school superintendent than the positions occupied by rank and file public employees, or even those high ranking employees identified in the decisions cited above who were not "ultimately responsible for the management" of the agencies which they served, and that we are therefore warranted in extending the reasoning of 92-ORD-1145 to the present appeal. Pursuant to KRS 83A.150(9), the city manager is "the chief administrative officer" of the city, and is empowered to "exercise those executive powers and duties delegated to him by ordinance and statute," and to "promulgate procedures to insure orderly administration of the functions of city government and compliance with statute or ordinance." By the same token, a school superintendent is deemed the "executive officer of the board" of education he serves, and is vested with general supervisory powers relative to the "conduct of the schools, the course of instruction, the discipline of pupils, and the management of business affairs." KRS 160.370. Although both are responsible to the board that appoints them, they are nevertheless "ultimately responsible for the management" of the agencies they serve and singularly accountable to the public for the discharge of their official duties. Acknowledging that the environments within which they discharge these duties are functionally dissimilar, we conclude that by virtue of the authority they wield, the city manager and school superintendent occupy a leadership role of ultimate responsibility that places them in the same analytical category.
Based on the reasoning in 92-ORD-1145, we conclude that Mr. Broughton's privacy interest in the summary evaluation prepared by the Henderson Board of Commissioners must yield to the public's interest in the records reflecting how the mayor and commissioners assessed his performance, and how they arrived at the 1.32 percent merit increase they awarded him. With respect to this document, we find that the city's reliance on KRS 61.878(1)(a) was misplaced. Having examined the document, we find nothing of such a uniquely sensitive or personal character as to implicate privacy considerations for Mr. Broughton, or his evaluators, that outweigh the public's right to know, or justify redaction of all or any of its parts. 3 However, because those portions of the evaluation reflecting the area scores of each commissioner and the mayor are extracted from the preliminary evaluations that each prepares, which both parties agree are exempt per KRS 61.878(1)(j), we find that the city may properly mask the area scores and commissioner's scores, but not the area totals and average commissioner score. The remainder of the evaluation must be disclosed without redaction.
We are not persuaded by the city's argument that pursuant to KRS 61.878(1)(j), what the public is entitled to know is the action that the city took in light of the evaluation, and that because this action (Mr. Broughton's 1.32 percent merit increase) has been disclosed, the issues on appeal are moot. Both the courts and this office have long recognized that predecisional documents that are incorporated into, or form the basis of, final agency action, forfeit their preliminary characterization and must be disclosed. See, e.g.,
City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658, 659 (1982) (holding that if agency decision maker "adopts" preliminary notes or recommendations "as part of his final action, " their preliminary characterization is lost to that extent);
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953, 956 (1983) (holding that preliminary records that are adopted by the agency "as the basis of its final action" become releasable);
University of Kentucky v. Courier-Journal and Louisville Times Company, Ky., 830 S.W.2d 373, 378 (1992) (holding that investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action"). See also, 00-ORD-125 and authorities cited therein.
The document at issue in this appeal was adopted as the basis for the Henderson Board of Commissioner's decision to award Mr. Broughton a 1.32 percent merit increase. The fact that the Board's final action was publicly disclosed does not, in our view moot the issue of public access to the document that formed the basis of that action. To the extent that this position represents a departure from earlier decisions affirming agency denial of access to evaluations on the basis of KRS 61.878(1)(j), we believe that these decisions must be modified. While, as noted above, we continue to ascribe to the view that the overwhelming majority of public employee evaluations enjoy the protection of KRS 61.878(1)(a), we do not believe that on those "rarest of occasions," 99-ORD-137, p. 4, when the exception does not apply, the public is only entitled to review records reflecting what final action was taken as a result of the evaluation. Instead, we find that the cited authorities mandate disclosure of a performance evaluation, not protected by KRS 61.878(1)(a), if that evaluation was the basis for agency's final action relating to the evaluated employee. Simply stated, the public is entitled to know not only what action was taken, but why that action was taken.
In sum, we hold that although the City of Henderson argued in good faith, and based on prior opinions of this office, that the summary evaluation completed by the Mayor and Board of Commissioners as a basis for awarding the Henderson City Manager a pay increase was excluded from disclosure by KRS 61.878(1)(a)(i), and (j), its reliance on these authorities was misplaced. Further, we hold that OAG 77-394 and its progeny cannot be relied upon for the proposition that "the evaluation of [an employee's] performance is a matter of opinion and does not constitute any action on the part of the [agency] . . . The action which the [agency] takes in light of the exclusion is what the public is entitled to know." To the extent that this position is inconsistent with the decisions in City of Louisville , above, Board of Medical Licensure , above, and University of Kentucky , above, we believe it must be modified. Although we reaffirm the long-standing rule that performance evaluations of public employees are excluded from disclosure by KRS 61.878(1)(a), we hold that in those exceptional cases where the employee who is evaluated is ultimately responsible for the management of the agency he serves, and his evaluation is not protected from disclosure by KRS 61.878(1)(a), the evaluation must be disclosed if it forms the basis of final agency action in relation to the employee. Such is the case in the appeal before us, and we therefore conclude that, with the narrow exceptions noted, the commission's summary evaluation of Mr. Broughton should be released.
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.
Footnotes
Footnotes
1 Mr. Ternes described the evaluation process as follows:
The evaluation itself is performed by the Mayor and each of the four commissioners on preprinted forms of ten pages. The evaluation form contains a grading system, and comments, suggestions and recommendations sections for eight areas of responsibility to be filled in by the commission members. Upon completion by each of the members, the scores for each area are tabulated and averaged, and a one page compilation of the total average score and a breakdown of each member's scoring by area is prepared and given to Mr. Broughton along with each filled in form. After that, the commission collectively determines to what extent, if any, his salary should be increased, which increase is made by resolution.
2 We reject the argument that the evaluations, completed on preprinted forms and consisting of grades, comments, suggestions, and recommendations in each of eight areas of responsibility, can properly be characterized as "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final agency action. " KRS 61.878(1)(i). Given the rule of strict construction of the exceptions to public inspection which is codified at KRS 61.871, the Attorney General has narrowly construed this exception to apply, in general, to records which constitute "an aid to memory or . . . the basis for a fuller statement, as, for example, written or shorthand notes," or "a tentative version, sketch, or outline of a formal and final written product such as a draft report" 97-ORD-183, p. 4, and "letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality." 00-ORD-168, p. 2. Simply stated, the evaluations are neither drafts, notes, nor correspondence.
3 This is not to say that such could never be the case. For example, in 92-ORD-1145 we recognized that those portions of the superintendent's performance evaluation that did not relate to the operation and management of the school system, and were of a purely personal nature, could properly be redacted pursuant to KRS 61.878(1)(a) and 61.878(4).