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 Owen County Fiscal Court violated the Open Records Act in partially denying Gerald T. Kemper's August 22, 2002, request for records and information pertaining to the Owen County Parks and Recreation Board. Mr. Kemper was denied access to the names and addresses of individuals who made contributions to the Board or to Owen County Fiscal Court "for use by the parks and recreation board," along with the dates the contributions were made, on the basis of KRS 61.878(1)(a). He was also denied access to the applications and resumes of individuals not selected for the position of parks director on the basis that these records were not retained. For the reasons that follow, we affirm the fiscal court's partial denial of Mr. Kemper's request but find that the failure to maintain copies of the applications and resumes may raise records management issues that are appropriate for review by the Kentucky Department for Libraries and Archives. KRS 61.8715 .
As recently as October 3 of this year, the Attorney General reaffirmed the principle that a private donor's desire for anonymity often outweighs the public's interest in disclosure that was first articulated in OAG 86-76 and later in 94-ORD-1 and 94-ORD-67. See 02-ORD-177. Acknowledging that the issue of access to records reflecting private donors' identities is currently before the Kentucky Court of Appeals, 1 we concluded the recent decision, as well as each of the cited decisions, by holding that although the amount of pledges, contributions, or donations must be disclosed, the names and addresses of the private donors could properly be withheld under authority of KRS 61.878(1)(a). 2 We affirm the fiscal court's denial of his request on this basis.
Turning to the issue of access to the applications and resumes of unsuccessful applicants for the position of parks director, we affirm the fiscal court's denial of Mr. Kemper's request. The fiscal court states that the applications were not retained. Further, we note that even if the application and resumes of the unsuccessful applicants had been retained, access to them could be denied on the basis of KRS 61.878(1)(a) as construed in OAG 90-113, 96-ORD-1, 97-ORD-72, 00-ORD-90, and 01-ORD-88. 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 P.2d 348, 352 (1991). In any event, we find that the fiscal court's failure to produce nonexistent records did not constitute a violation of the Open Records Act.
Nevertheless, the intent of the Open Records Act has been statutorily linked to the intent of Chapter 171 of the Kentucky Revised Statutes, relating to the management of public records. KRS 61.8715 now provides "that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of [KRS 171.410 to 171.740, dealing with the management of public records, and KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems]." The General Assembly has thus recognized "an essential relationship between the intent of [the Open Records Act] " and statutes relating to records management. Id.
Our review of the Local Government General Records Schedule, a copy of which is enclosed, indicates that the retention period for the applications of persons not hired is two years. If, in fact, the records Mr. Kemper requested fall within Series L5038 of the schedule, they may not have been retained for the proper period of time. In light of this discrepancy, we refer this matter to the Department for Libraries and Archives for whatever action the Department deems appropriate.
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.
Gerald T. KemperAttorney at Law109 N. Thomas StreetOwenton, KY 40359
Billy P. O'BanionCounty Judge ExecutiveOwen County Fiscal Court100 N. Thomas StreetOwenton, KY 40359
Charles E. CarterOwen County Attorney102 North Madison StreetOwenton, KY 40359
Richard Belding, DirectorPublic Records DivisionDepartment for Libraries and Archives 300 Coffee Tree RoadP.O. Box 537Frankfort, KY 40601
Footnotes
Footnotes
1 University of Louisville Foundation v. Cape Publications, Inc. d/b/a The Courier-Journal, 2002-CA-1590.
2 KRS 61.878(1)(a) authorizes nondisclosure of:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.