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 Owensboro violated the Open Records Act in the disposition of William T. Pogue, Jr.'s May 30, 2001 request to inspect the most recent performance evaluation of Owensboro City Manager Ron Payne. For the reasons that follow, and based upon the representations made by the City of Owensboro that the City Commission took no action for or against Mr. Payne as a result of the evaluation, we affirm the City's denial of Mr. Pogue's request.
In a response dated June 1, 2001, City Attorney David C. Fowler advised Mr. Pogue that the City Commission's performance evaluation of Mr. Payne "contains preliminary drafts, notes, correspondence with private individuals, preliminary recommendations and preliminary memoranda in which opinions are expressed and is, therefore, exempt from public disclosure under the provisions of KRS 61.878(1)(i) and (j)." Mr. Fowler explained:
Kentucky courts have consistently held that preliminary or pre-decisional documents are exempt from public inspection even after final action is taken by a public agency and lose their exempt status only if they are adopted or incorporated into the final agency action. See City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983) and University of Kentucky v. Courier-Journal and Louisville Times Co., Ky. 830 S.W.2d 373 (1992). In this instance, no action has been taken by the Owensboro Board of Commissioners on behalf of, or against, Mr. Payne as a result of his recent job performance evaluation, and therefore, it remains exempt from public inspection under the aforementioned statutory authority. This position is entirely consistent with the position taken by the Kentucky Attorney General in 00-ORD-177, involving the City of Henderson, Kentucky.
Several months later, Mr. Pogue initiated this open records appeal.
In a supplemental response directed to this office following commencement of Mr. Pogue's appeal, Mr. Fowler elaborated on the City's position. He again focused on the factually distinguishable evaluation process for the Owensboro City Manger, contrasting that process with the evaluation process that the Attorney General analyzed in 00-ORD-177. Mr. Fowler observed:
The question regarding public disclosure of City Manager evaluations was thoroughly addressed by your office in 00-ORD-177 which was decided September 18, 2000. That opinion involved the City of Henderson, Kentucky, and its denial of the local newspaper's request for a copy of the annual evaluation of the City Manager that was conducted pursuant to the terms of an employment contract in order to determine whether or not the City Manager was entitled to a pay increase. The facts upon which the decision in 00-ORD-177 was based, are not present in this appeal. City Manager Ron Payne's job performance evaluation was conducted at the discretion of the Board of Commissioners and not compelled under any contract of employment.
Furthermore, no action of any kind has been undertaken by the Owensboro Board of Commissioners on behalf of, or against, Mr. Payne as a result of his job performance evaluation. Under the rationale of 00-ORD-177, this evaluation is exempt from public disclosure under KRS 61.878(1)(i) and/or (j) unless and until the protections afforded by those exemptions are forfeited on the basis of the incorporation 1 of said evaluation into any final action taken against, or on behalf of, the City Manager.
Although Mr. Fowler provided scant information concerning the evaluation process employed by the Commission, including why and how the evaluation was conducted, he emphasized that "the critical facts upon which the Henderson decision rests do not exist in this case," and urged the Attorney General to affirm the City of Owensboro's denial of Mr. Pogue's request. Based on the limited written record before us, and the inability to look beyond that record, we find that the City properly denied the request.
As Mr. Fowler notes, in 00-ORD-177 this office engaged in a lengthy analysis of the propriety of the City of Henderson's denial of its city manager's performance evaluation on the basis of KRS 61.878(1)(a), (i), and (j), and concluded that, in general, the City of Henderson's reliance on these exemptions was misplaced. A copy of that decision is attached hereto, and its reasoning incorporated by reference. Because the facts upon which that decision turned do not exist in the instant appeal, however, we reach the opposite conclusion relative to the propriety of the City of Owensboro's denial. Fundamental to this office's decision in 00-ORD-177 was the recognition that although the city manager's evaluation did not constitute final agency action, the evaluation was the basis for the city commission's final action, the decision to award the city manager a merit increase, and thus forfeited its preliminary characterization and must be disclosed.
We began our analysis in 00-ORD-177 by rejecting the City of Henderson's position that the city manager's evaluation enjoyed protection from disclosure by operation of KRS 61.878(1)(a) . That exemption 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.
Analogizing the Henderson city manager's evaluation to that of the school superintendent which this office deemed nonexempt in 92-ORD-1145, we determined that KRS 61.878(1)(a) was inapplicable. The Attorney General reasoned:
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.
00-ORD-177, p. 7. Because both the city manager and the school superintendent were "ultimately responsible for the management" of the agencies they served, in contrast to rank and file public employees whose evaluations enjoyed protection under KRS 61.878(1)(a), we concluded that the City of Henderson's reliance on the privacy exception was misplaced.
Our analysis in 00-ORD-177 did not, however, end there. The Attorney General instead proceeded to examine the propriety of the City of Henderson's reliance on KRS 61.878(1)(j), authorizing nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
At pages 8 and 9 of 00-ORD-177, we observed:
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, the Attorney General reaffirmed the longstanding rule that performance evaluations of public employees are excluded from disclosure by KRS 61.878(1)(a), but held "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." 00-ORD-177, p. 10.
On the facts provided by the City of Owensboro, we must conclude that this is not the case in the appeal before us. Although, as we held in 00-ORD-177, we do not believe that a city manager's performance evaluation is excluded from inspection by KRS 61.878(1)(a), we find that the evaluation process employed by Owensboro, as described by Mr. Fowler, distinguishes this appeal from 00-ORD-177. Simply stated, as presented to this office, no action resulted from the Owensboro city manager's evaluation. That document therefore cannot be deemed to have forfeited its preliminary characterization. As Mr. Fowler notes, the city manager's performance evaluation "was conducted at the discretion of the Board of Commissioners [, was] not compelled under any contract of employment [, and] no action of any kind has been undertaken by the . . . Board . . on behalf of, or against, [the city manager] as a result of his job performance evaluation." The evaluation therefore retained its preliminary character, and was properly withheld under authority of KRS 61.878(1)(j). Our review is limited to the written record before us, and on the basis of that record we affirm the City's denial of Mr. Pogue'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.
William T. Pogue, Jr.417 Locust CourtOwensboro, KY 42301
Ronald L. PayneCity Manager City of OwensboroP.O. Box 10003Owensboro, KY 42302-9003
David C. FowlerCity AttorneyCity of OwensboroP.O. Box 10003Owensboro, KY 42302-9003
Footnotes
Footnotes
1 See 01-ORD-83 for an extensive analysis of the misuse of the legal concept of incorporation as the basis for determining a document's forfeiture of its preliminary characterization. That decision, reassessing the courts' decisions interpreting KRS 61.878(1)(i) and (j), establishes the appropriate standard of "adoption" rather than incorporation.