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 Cabinet for Families and Children violated the Open Records Act in partially denying Diane Lewis' request for various records pertaining to the selection of an applicant for promotion within the Cabinet. Ms. Lewis, a Cabinet employee, was among the unsuccessful applicants for promotion. For the reasons that follow, we find that the Cabinet's initial response to Ms. Lewis' request was procedurally deficient. This procedural deficiency was subsequently corrected, and a proper statutory basis asserted for partially denying Ms. Lewis' request. We therefore affirm the Cabinet's partial denial of her request.
Ms. Lewis requested access to:
. Applications pulled from the Internal Mobility Register;
. Log of persons contacted for interviews and the scheduling of interviews;
. Three page questionnaire packets completed at each interview, on each person interviewed by the three member interview committee;
. Evaluations provided to the committee by all persons interviewed;
. All recommendations made by the committee for filling the position.
On March 7, 2001, the Cabinet furnished Ms. Lewis with her own application, the schedule of interviews, two of the three questionnaire packets relating to her, two of the three questionnaire packets relating to the successful applicant, and her own evaluations. The Cabinet did not indicate what records had been withheld, or the statutory basis for its decision to partially deny her request.
Upon Ms. Lewis' request for clarification, Mark A. Rosen, Director of the Cabinet's Division of Personnel, elaborated on the Cabinet's position. He explained:
Per KRS 61.878 (1)(a), "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" . Therefore, the applications resulting from the review of the internal mobility register and the evaluations of the employees who were considered as candidates for the position in question can not be released.
Per KRS 61.878 (1)(i), "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency" . Therefore, the questionnaires completed by the interview panel in response to the interview of each of the unsuccessful candidates can not be released.
Per KRS 61.878 (1)(j), "Preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended." Therefore, the individual recommendations made by the interview panel regarding each of the interview candidates can not be released.
In accordance with KRS 18A.020 (4), "Upon written request a state employee, an applicant for employment, and an eligible on a register shall have the right to inspect and to copy any record and preliminary documentation and other supporting documentation that relates to him, except that an applicant, an eligible, or a state employee shall not have the right to inspect or to copy any examination materials." In accordance with this regulation, you were provided all preliminary documentation and supporting documentation relating to you.
Dissatisfied with Mr. Rosen's response, Ms. Lewis initiated this open records appeal, questioning why the Cabinet only partially honored her request for the questionnaires pertaining to the successful applicant and her, and denied in full her request for the questionnaires of unsuccessful applicants.
In a supplemental response directed to this office following commencement of Ms. Lewis' appeal, Mr. Rosen defended the Cabinet's position. He observed:
In addition to KRS 61.878(1)(i) and (j) having been asserted as grounds for withholding the completed questionnaires and recommendations of the interview panel regarding the unsuccessful candidates for promotion, KRS 61.878(1)(a) also prevents their disclosure. Records of an evaluative and/or preliminary nature or concerning which there is a cognizable privacy interest have consistently been determined by the Attorney General to be exempt from disclosure. See, e.g., 94-ORD-108, 96-ORD-1, 96-ORD-33, 99-ORD-14, and 00-ORD-90. The Cabinet and Division of Personnel in the subject case have actually given a broad interpretation to the Open Records Act in favor of disclosure as to the questionnaire documents which Ms. Lewis did receive, and which related to her and the successful applicant, because KRS 18A.020(4) and KRS 61.878(1)(g) may have been asserted to prevent the disclosure of any questionnaire documents and information insofar as they may constitute "examination materials" which could be used for future employment selections or promotions.
Mr. Rosen belatedly furnished Ms. Lewis with copies of the third questionnaire relating to her and to the successful applicant for the position, as well as the successful applicant's internal mobility application. Without explanation, he indicated that these documents were "inadvertently omitted." Although we find no error in its decision to partially deny Ms. Lewis' request, we believe that the manner in which the Cabinet denied the request was procedurally flawed.
The Cabinet for Families and Children violated the procedural requirements of the Open Records Act set forth at KRS 61.880(1) in its March 7 response by failing to cite the exceptions authorizing its partial denial of Ms. Lewis' request, and briefly explaining how those exceptions apply to the records withheld. KRS 61.880(1) provides:
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Although these deficiencies were subsequently remedied, we remind the Cabinet that "the procedural requirements of the Open Records Law are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
Turning to the substantive issues in this appeal, we affirm the Cabinet's partial denial of Ms. Lewis' request on the basis of KRS 61.878(1)(a). 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 a number of decisions, this office has recognized that the privacy interests of unsuccessful applicants for public employment in records relating to them is superior to the public's interest in disclosure. See, e.g., OAG 90-113; 96-ORD-1; 97-ORD-72; 00-ORD-90. These opinions were premised on the notion that disclosure might embarrass or harm applicants who fail to get a job. Present employers, coworkers, and prospective employers, should the applicants seek new work, would learn that others were deemed better qualified for a competitive appointment. The simple fact that the unsuccessful applicant wished to leave his present employment might prove embarrassing. Ultimately, the hiring and appointment process might be compromised by encouraging "lesser qualified but thicker skinned persons [to apply]."
Arizona Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 806 P2d 348, 352 (1991). Conversely, disclosure of records relating to successful applicants has been deemed to adequately promote the public's interest in assessing the competence of people the agency employs and monitoring its adherence to procedures governing hiring. With reference to records submitted by unsuccessful applicants, the balance tips in favor of nondisclosure. 97-ORD-72, p. 3, citing
Core v. United States Postal Service, 730 F.2d 946 (4th Cir. 1984). Accordingly, we find no error in the Cabinet's refusal to honor Ms. Lewis' request for applications, questionnaire packets, and evaluations relating to the unsuccessful applicants for the position for which she also applied.
Nor do we find any error in the Cabinet's decision to withhold the successful applicant's evaluations from Ms. Lewis. In a line of decisions dating back to 1977, 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. See 00-ORD-177, and opinions cited therein. In general, disclosure of evaluations "spurs unhealthy comparisons, breeding discord in the workplace, and [may] result in injury or embarrassment to the employee." 92-ORD-1145, p. 4.
Consistent with KRS 61.878(3), Ms. Lewis received copies of records relating to her, including evaluations, questionnaire packets, and applications. She also received copies of the successful applicant's questionnaire packets and applications. Although the Cabinet initially omitted one set of questionnaires from both packets, this omission was subsequently corrected, and a complete set of questionnaires was disclosed to Ms. Lewis. Having released all nonexempt records to Ms. Lewis, we conclude that the Cabinet for Families and Children discharged its duty under the Open Records Act. We encourage the Cabinet to review KRS 61.880(1) to insure that future responses conform to the procedural requirements of the Act, but otherwise find that nothing more is required of it in this matter.
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.
Diane Lewis523 Chinook TrailFrankfort, KY 40601
Mark A. Rosen, DirectorDivision of PersonnelCabinet for Families and Children4E-D CHR Building275 East Main StreetFrankfort, KY 40621
Charles "Pat" LawrenceOffice of General CounselCabinet for Families and Children275 East Main StreetFrankfort, KY 40601