Request By:
Bruce Tyler
585 Hawthorne Avenue
Shelbyville, KY 40065Lauren E. Roberts
Jefferson County Public Schools
P.O. Box 34020
Louisville, KY 40232-4020Rosemary Miller
Jefferson County Public Schools
P.O. Box 34020
Louisville, KY 40232-4020
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jefferson County Public Schools (JCPS) properly relied on KRS 61.878(1)(a) and (i) in partially denying Bruce Tyler's request to inspect school personnel files for nine former teachers. By letter dated September 26, 2001, Mr. Tyler made the following request:
I am researching a wide range of activities in Louisville for a book on role of blacks in the World Wars. I'd like to exam the personnel file of several people. They are as follows:
By letter of September 28, 2001, Lauren E. Roberts, Public Information Officer, responded to Mr. Tyler's request, advising him:
Please be advised that an employee's personnel file contains many documents and is a mixture of material that is subject to inspection and material that may be withheld from inspection pursuant to the Open Records Act.
The personnel files contain evaluations, which are excluded from public inspection under KRS 61.878(1)(a), since such documents contain supervisors' opinions, the disclosure of which would constitute an unwarranted invasion of personal privacy.
Additionally, information such as the employee's home address, social security number, date of birth, telephone number and race/gender codes must be redacted from the documents since the disclosure would also constitute an unwarranted invasion of the employee's personal privacy. Such information is personal to an employee and does not impact an employee's performance in public employment.
Letters of reference are withheld pursuant to KRS 61.878(1)(i), which exempts from public inspection correspondence with private individuals. Letters of reference are letters received by the school district from persons whose names are provided to the District by a prospective employee. Medical documents are also excluded from public inspection.
Additionally, KRS 61.872(2) requires that requests to inspect public records describe the records to be inspected. Please advise as to which documents in the personnel file you are specifically requesting to inspect before we can proceed with processing your request.
Mr. Tyler appealed from the JCPS's response. He reiterated that he was doing research and wanted complete access to the personnel files without restriction. In his letter of appeal, he stated, in part:
Let me explain what I am doing. I teach American History. I am researching Louisville and Kentucky's roles in World War I and World War II, and more, on the home front. Some of these teachers were involved with the "4-Minute men" speakers' bureau under the National Public Information committee headed by George Creel. They also engaged other war work activities. I also need to know their job status, placement and dates of where and when they taught. I'd like to see their general files without any restrictions, included their evaluations, by supervisors, letters of recommendations to see their connections with other people--who sponsored them. . . .
After receipt of the notification of the appeal and a copy of Mr. Tyler's letter of appeal, Ms. Roberts' provided this office with a response to the issues raised in the appeal. In her response, Ms. Roberts explained:
Mr. Tyler requests unrestricted access to the personnel files of former employees including evaluations and letters of reference. Mr. Tyler states, in his letter of appeal, that these former employees are now deceased. Because the dates of employment of these individuals may be traced back as far as the 1920's, it may be reasonable to question whether these individuals are still living. However, in most cases, the files contain no information to indicate that the employee is deceased (It appears that none of these individuals died while in the employment of the school district) . In addition, we believe that the privacy rights being protected include the privacy of the supervisors evaluating employees and the privacy of individuals writing references. We have no information regarding whether those individuals are deceased.
We are asked to determine whether the partial denial of Mr. Tyler's request violated the Open Records Act. For the reasons that follow, because it has not been established whether the nine individuals, whose school personnel records are sought for inspection, are deceased, we conclude that the JCPS's response was consistent in part and inconsistent in part with the Act.
As a general rule, a public agency is not obligated to honor a broadly worded request for a public employee's personnel file. This position is premised on the notion that:
A personnel folder of a public employee, by its very nature, contains 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.
In this regard, JCPS's partial denial of Mr. Tyler's request to examine the entire file of the former teachers was proper and consistent with prior decisions of this office. Moreover, we conclude that the agency's response which described documents in the personnel files that it considered exempt from disclosure, cited the exemption that authorized nondisclosure, and briefly explained how the cited exemption applied to the records withheld from disclosure was also proper and met the requirements of KRS 61.880(1).
In its initial response, after partially denying Mr. Tyler's request, JCPS asked Mr. Tyler to "advise as to which documents in the personnel file you are requesting to inspect before we can proceed with processing your request?" Instead of submitting another request identifying the specific records from the personnel files, Mr. Tyler appealed the agency's partial denial to the Attorney General, as he properly could do, asking that we determine whether the partial denial was proper and whether he could obtain unrestricted access to the personnel files.
A critical issue in this appeal is whether any or all of the former teachers are still living.
In 99-ORD-173, we held that the Mason County Board of Education improperly denied access to a former teacher's personnel file because the record showed that the teacher had died in 1990 at the age of 75. In reaching this conclusion, we stated:
In a line of opinions dating back to 1981, the Attorney General has held that records pertaining to persons who are deceased are not protected by KRS 61.878(1)(a) because the decedent's right of privacy terminates at the time of his or her death. OAG 81-149; OAG 82-590; OAG 86-31; 99-ORD-11. On this issue, we have observed:
OAG 86-31, p. 3, 4. As recently as January, 1999, the Attorney General confirmed this view, commenting:
99-ORD-11, p. 8. Accordingly, this office attaches little or no weight to the privacy interests of persons who are deceased.
The JCPS, in part, denied access to certain records in the personnel files under KRS 61.878(1)(a) stating disclosure of records such as employee's home address, social security numbers, date of birth, telephone number, race/gender codes, and medical records would constitute an unwarranted invasion of personal privacy.
In OAG 88-2, we held that the public agency's reliance upon KRS 61.878(1)(a) was not legally sufficient where the person was deceased. Both JCPS and Mr. Tyler indicate that they have no evidence that any of the teachers are still alive. If JCPS has any records, information, or knowledge to confirm that a particular former teacher is deceased, then it should make the personnel file as to that individual available for inspection.
However, KRS 61.880(2) places the burden of proof in sustaining a denial of a request to inspect public records on the public agency. The JCPS partially denied access to certain records on the basis that disclosure would constitute an unwarranted invasion of personal privacy under KRS 61.878(1)(a). Thus, the agency had the burden of establishing that the former teachers involved are still alive. In the absence of meeting this burden, we conclude the JCPS improperly withheld disclosure of records in the former teachers' personnel files under KRS 61.878(1)(a). Those records should be made available for Mr. Tyler's inspection.
The same would apply to evaluations by supervisors under KRS 61.878(1)(a). Unless the agency establishes the supervisors are still alive, the application of KRS 61.878(1)(a) would not apply. Those records should be made available for inspection.
Although the Open Records Act does not set out a time limit as to when restrictions on public records are no longer confidential, we believe an actuarially reasonableness standard should be followed in making a determination as to whether a former employee is still living. For example, assessing the likelihood that a person, whose age is far in excess of 100 years old, would still be living.
In addition, the Open Records Act contemplates a spirit of cooperation between the parties. If a requester has information or evidence that a former employee is deceased, he should assist the agency by providing any information to confirm that fact through sources, such as a death certificate, obituary, newspaper story, or information acquired from research, or from family or friends of the former employee.
Finally, we address the withholding of access to letters of recommendation pursuant to KRS 61.878(1)(i). That statute authorizes the nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
In analyzing the disclosure of letters of reference, the Attorney General observed, 93-ORD-32:
"A person's name is personal but it is the least private thing about him . . . The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order (i.e., adoption records)." OAG 82-234, p. 3. Although the public's interest in disclosure of the reference submitted by a public employee is less compelling than its interest in knowing the employee's qualifications for public employment, we believe it is superior to the references' minimal privacy interest in their names. Accordingly, we find that [an agency] must release the names of references appearing on job applications and related documents.
We do not mean to suggest that [an agency] must release letters of reference submitted on behalf of its employees. In OAG 91-48, we expressly declined to extend the reasoning of OAG 89-90 to letters of reference. There, we held that inspection of letters of reference could be denied pursuant to KRS 61.878(1)[i], which exempts from public inspection "correspondence with private individuals."
93-ORD-32, p. 4.
Thus, under authority of 93-ORD-32, the JCPS must disclose the names of the persons who submitted letters of reference, but may withhold the contents of the letters under KRS 61.878(1)(i). It is, of course, within the JCPS' discretion to release copies of the entire letters of reference, KRS 61.878(i) notwithstanding. As we observed in 00-ORD-139, "the custodian of records of a public agency may allow inspection of all the records in his custody regardless of whether the records may be exempt by their nature under the provisions of KRS 61.878" inasmuch as the exemptions are permissive shields and not mandatory shackles. 00-ORD-139, citing OAG 79-275. It is, however, for the JCPS to determine if discretionary release of otherwise exempt public records serves the public interest or compromises a significant governmental interest. The JCPS improperly denied access to the names of individuals submitting letters of reference in the personnel files of the former teachers.
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.