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 Louisville properly relied on KRS 61.878(1)(a) in partially denying Courier-Journal reporter Nancy Rodriguez's August 2002 request for records relating to Metro Parks Director Brigid Sullivan and Metro Parks employee Rob Roberts. For the reasons that follow, we affirm the City's partial denial of Ms. Rodriguez's request. In so doing, we reaffirm twenty-five years of Attorney General's decisions recognizing the propriety of public agency denials of open records requests for public employee performance evaluations on the basis of KRS 61.878(1)(a).
In August 2002, Ms. Rodriguez requested access to:
Resumes, applications for employment, all job evaluations, all complaints and all records concerning resolution of those complaints, disciplinary actions and salary histories for Metro Parks Director Brigid Sullivan and former Metro Parks employee Rob Roberts.
The City promptly responded to Ms. Rodriguez's request, affording her access to all of the records identified in her request with the exception of performance evaluations. Relying on KRS 61.878(1)(a), the City maintained that Ms. Sullivan's and Mr. Roberts' "privacy interest . . . outweighs the public's interest in obtaining the information" contained in their evaluations. Shortly thereafter, attorney Jon C. Fleischaker initiated this appeal on behalf of his client, The Courier-Journal.
In his letter of appeal, Mr. Fleischaker attempted to distinguish the public employee performance evaluations at issue in this open records appeal from those public employee performance evaluations consistently deemed exempt under KRS 61.878(1)(a). 1 Noting that the Attorney General "has held both for and against the exemption of public employee job evaluations," and that our decisions in these appeals "has often hinged on the level of leadership and policy making a public employee's position entails," 2 Mr. Fleischaker observed:
As Director of Metro Parks, Brigid Sullivan occupied a position more akin to a school superintendent or city manager than to a rank and file public employee. Sullivan was the top official in the Metro Parks Department. Yet, in its September 12 letter denying Ms. Rodriguez's Open Records request, the City reasoned that Sullivan's job evaluations were exempt from disclosure because she was not "ultimately responsible for the management of the City of Louisville." Obviously Sullivan was not responsible for the whole City's management, but this reasoning, as a basis for exempting her evaluative records from disclosure, distorts the proper inquiry. Sullivan - like a city manager or school superintendent - was ultimately responsible for the management of the agency she served despite the fact that she was responsible to those who appointed her. See 00-ORD-177.
(Emphasis in original.) It was his position that "the public interest in the disclosure of her job evaluations is one in the same with the public's right to monitor the actions of its Metro Parks Department."
Mr. Fleischaker emphasized that the privacy analysis does not turn exclusively on "the responsibilities of a particular position," but is, in addition, "'intrinsically situational' and, as such, other factors should play an important role in the balance." Included in these factors, he asserted, is waiver of one's privacy rights "by injecting oneself into matters of public concern." He explained:
In April, Footworks, Inc. of St. Matthews donated 500 pairs of shoes, reportedly valued at about $ 25,000, to the Metro Parks Department to be given to needy children. Many of the pairs of shoes were subsequently sold to children, and as a result Roberts was fired from Metro Parks and indicted on several counts including theft, forgery and tampering with evidence. He has pleaded not guilty and his criminal case is still pending. Likewise, Sullivan was placed on paid suspension during an investigation of Metro Parks relating to the shoes and ultimately left her position as Metro Parks Director.
In an interview with Doug Profitt of WHAS News, Mr. Roberts claimed that he was a "fall guy" in the shoe scandal. Roberts went on to proclaim "I've been there 24 years. Never been suspended, never been written up, come up through the ranks. I've done everything they've asked me to do." By making these statements in an interview with a mass media outlet, Roberts has voluntarily placed his job performance record into the fray and indirectly accused the Metro Parks Department of impropriety. As such, Roberts has simultaneously waived his personal privacy interests in the job evaluations at issue and legitimized a growing public concern about the management of Metro Parks. This clearly tips the comparative weighing of interests in favor of public disclosure of his job evaluations.
In sum, Mr. Fleischaker argued, "Sullivan, by virtue of her position and Roberts, by virtue of his actions, have largely forfeited their privacy interests in their job evaluations while the public interest in the disclosure of those evaluations and in the operation of Metro Parks has concomitantly increased." In his view, "the City's refusal to disclose the records violates the Kentucky Open Records Act because disclosure of the job evaluations of Ms. Sullivan and Mr. Roberts does not constitute a clearly unwarranted invasion of privacy. "
Respectfully, we disagree. In a well-researched and well-reasoned response to Mr. Fleischaker's appeal, the City of Louisville analyzed the growing body of open records decisions issued by the Attorney General in which we have "resisted efforts to extend the holding in 92-ORD-1145 to any other public officer or official." 99-ORD-137, p. 8. Quoting the latter decision, the City correctly noted that resolution of these appeals "turned on the line of precedents reaching back to 1977, and this office's recognition that 'if changes in the law are to be made, they should be made by the legislature and if subtle interpretations [of the law] are to be made, they should be made by the Court.'" 99-ORD-137, p. 8, quoting OAG 80-54, p. 4.
The referenced line of decisions was premised on the notion 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. Mr. Fleischaker acknowledges that we have only departed from this position on two occasions, declaring in the first instance that the performance evaluation of a school system superintendent was subject to disclosure because the public's interest in reviewing those portions of the superintendent's evaluation that 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 may have. 92-ORD-1145. Later, we held that the position occupied by a city manager was "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 . . . who were not 'ultimately responsible for management' of the agencies which they served[, and whose evaluations were therefore deemed exempt] ." 00-ORD-177, p. 8. "By virtue of the authority they wield," we concluded, "the city manager and school superintendent occupy a leadership role of ultimate responsibility that places them in the same analytical category," and the decision to withhold the city manager's evaluation was not supported by the claimed exemption. Id. Mr. Fleischaker urges us to include Ms. Sullivan in this analytical category, to impute to Mr. Roberts a waiver of his privacy interest in his evaluations based on his public defense of the charges leveled against him, and to find that in both cases the city's reliance on KRS 61.878(1)(a) as the basis for withholding their evaluations was misplaced. Here, as before, we must decline to do so.
In our view, the city correctly analogizes Ms. Sullivan's position to that of the university department chair whose evaluation was at issue in 94-ORD-132, the school principal whose evaluation was at issue in 96-ORD-256, and the high ranking city officials whose evaluations were at issue in 96-ORD-275. Although she could not be characterized as a rank and file public employee, she was not " the individual who [was] 'ultimately responsible' for the management of the [agency she serves]." 99-ORD-137, p. 8. As with the referenced public officials, authority was delegated to her under the City/County Cooperative Compact (Louisville Code of Ordinances, Section 40.17(G)), but ultimate authority for the management of the city resides in the mayor, and of the county in the county judge/executive, just as ultimate authority for the management of the university resides in the university president, and the school system in the superintendent. We believe that it disserves both public agencies and the public to deviate from this bright line test and thus to create ambiguity in this well-settled area of law. "Any other conclusion, carried to its logical extension, would in our view unduly hamper the efficient operation of modern government the administration of which is more and more being placed in the hands of professional administrators."
Bennett v. Warden, Fla.App., 333 So.2d 97, 99 (1976).
We are similarly unwilling to impute to Mr. Roberts a waiver of his privacy interest in personal information contained in his evaluations. Clearly, there is a demonstrable public interest in the management of Metro Parks and allegations of improprieties leveled against some of its employees. As the only individual terminated in the wake of the shoe scandal, Mr. Roberts publicly rose to his own defense, but did not expressly, or in our view impliedly, waive his privacy interest in his evaluations. If he had wished to do so, he could have furnished the media with copies of his evaluations or notified his former employer that he did not object to disclosure. This office is, however, reluctant to read into the course of conduct Mr. Roberts elected to pursue, or the statements he made in interviews with the media, a waiver of his privacy interests, and thus to impinge on "[o]ne of our most time-honored rights."
Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 829 (1994).
The City of Louisville has effectively promoted the public's right to know whether the Metro Parks Department was properly executing its delegated authority, and whether its public employees were indeed serving the public, by disclosing the contents of Ms. Sullivan's and Mr. Roberts' personnel files with the single exception of their performance evaluations. Given the long recognized and strongly substantiated privacy interest in these evaluations, we find that disclosure of the information contained therein would constitute a clearly unwarranted invasion of personal privacy. We therefore affirm the City of Louisville's partial denial of Ms. Rodriguez's open records 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 proceeding.
Jon L. FleischakerDinsmore & Shohl, LLP1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
William C. StoneDirector of LawCity of LouisvilleDepartment of Law Room 200, City HallLouisville, KY 40202-2771
Kris M. Carlton, Assistant DirectorDepartment of Law City of LouisvilleRoom 200, City HallLouisville, KY 40202-2771
Paul GuagliardoAssistant Director of LawCity of LouisvilleDepartment of Law Room 200, City HallLouisville, KY 40202-2771
Footnotes
Footnotes
1 See, for example, OAG 77-394 (university professor) ; OAG 79-348 (teacher) ; OAG 80-58 (policeman); OAG 82-204 (university professor) ; OAG 86-15 (teacher) ; OAG 89-90 (teacher) ; OAG 91-62 (branch manager) ; 92-ORD-1375 (university professors); 94-ORD-54 (city auditor); 94-ORD-132 (university department chairs); 96-ORD-256 (school principals); 96-ORD-275 (high ranking city employees); 99-ORD-42 (city employees); 02-ORD-46 (officers employed by the Department of Fish and Wildlife Resources).
2 In support, Mr. Fleischaker cited 92-ORD-1145 (holding that a school superintendent's performance evaluation was not exempt) and 00-ORD-177 (holding that a city manager's performance evaluation was not exempt) .