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 Eastern Kentucky University properly relied on KRS 61.878(1)(a) in denying Courier-Journal reporter Mark Pitsch's March 17, 2003 request for copies of "the letter of application from Harry Moberly, Jr., for the position of Eastern Kentucky University president. . . [and] all supplementary materials submitted with the application, including a resume or curriculum vitae, letters of recommendation, and any other documents accompanying the letter of application." For the reasons that follow, and in light of the unique facts presented, we find that although EKU relied in good faith on prior decisions of this office in denying Mr. Pitsch's request, its reliance on KRS 61.878(1)(a) was misplaced.
In her March 18, 2003 denial, University Counsel Katherine M. Coleman invoked KRS 61.878(1)(a), as construed in 96-ORD-1, 97-ORD-72, 00-ORD-90, and 01-ORD-88, for the proposition that "applications and resumes (or curriculum vitae) submitted by, and other documentation regarding, unsuccessful applicants for employment are exempt from inspection or copying under the Open Records Act. " Shortly thereafter, John L. Fleischaker initiated this appeal on behalf of his client, The Courier-Journal. He asserted that the reasoning which underlies these decisions is inapposite because the cited decisions involved rank-and-file positions in state and local government, as opposed to a position of ultimate responsibility at a state university, and that "the level of responsibility of a public employee affects his or her privacy interests . . . [as well as] the public's interest in disclosure. " Additionally, Mr. Fleischaker asserted that the cited decisions were distinguishable based on the fact that the unsuccessful applicants' names had not been previously disclosed. Mr. Moberly's application for the position of EKU president, Mr. Fleischaker observed, "has been widely reported . . ., a fact which Moberly has publicly acknowledged . . . ." Finally, Mr. Fleischaker asserted, "the lack of a protected privacy interest is apparent because Moberly is both a state representative and an official at EKU." Noting that the weighing of competing public and private interests under KRS 61.878(1)(a) is "intrinsically situational, " he maintained:
The most important factor militating in favor of public disclosure of Moberly's application materials is that - unlike other unsuccessful applicants for public employment - disclosure of Moberly's application materials is of great value for the public oversight of both EKU and the General Assembly. This open records request concerns much more than a mere search for names of unsuccessful candidates for public employment. It concerns the control of a major state university and the public oversight of elected officials in the General Assembly.
Under these circumstances, Mr. Fleischaker concluded, the public interest in disclosure outweighs Mr. Moberly's privacy interest, and EKU's reliance on KRS 61.878(1)(a), as construed in the cited open records decisions, was misplaced.
In supplemental correspondence directed to this office following commencement of The Courier-Journal's appeal, Ms. Coleman elaborated on EKU's position and responded to Mr. Fleischaker's arguments. She explained that the University relied on these authorities because they were premised upon the recognition that disclosure of "resumes submitted by, and other documentation regarding, unsuccessful applicants for employment . . . 'might be embarrassing and harmful to an applicant's career' as well as 'prove detrimental to the hiring process, resulting in lesser qualified but thicker skinned persons applying.' 00-ORD-90 citing 97-ORD-72 and
Arizona Board of Regents v. Phoenix Newspapers, Inc., 806 P.2d 348, 352 (1991)." Acknowledging that in 00-ORD-177 the Attorney General determined that "the level of responsibility of a public employee's position affects his or her privacy interests in records relating to his or her job," Ms. Coleman emphasized the "distinction between the personnel records of an individual currently holding the position of agency head and the mere application for employment in that position." She rejected Mr. Fleischaker's argument that because Mr. Moberly is a state representative and an EKU official he has no protected privacy interest, and that the public's interest in him, and in records relating to him, is heightened. In support, she cited
Core v. United State Postal Service, 730 F.2d 946 (4th Cir. 1984) and the open records decisions previously enumerated, arguing that he enjoys the same protected interest in his unsuccessful application for appointment to a position within the University as any other individual. In addition, she argued that his "application for employment has nothing to do with his duties or actions as a member of the General Assembly and nothing to do with the actual control and oversight of the daily business operations of [EKU]." With reference to the publicity surrounding Mr. Moberly's application, Ms. Coleman concluded:
It is EKU's position that it would be inappropriate to require this institution or any state agency to reach independent determinations based on comments reported in the news media as to whether an individual applicant has, in effect, "waived" their right to privacy with respect to their unsuccessful application for employment. It would be fraught with legal pitfall to impose upon an agency the discretionary determination whether an applicant is a public official or persona of such nature as to alleviate them of the right to privacy protected by the statute and so clearly set forth in the prior opinions of the Attorney General. Requiring an agency to independently determine whether an unsuccessful applicant is entitled to a right of privacy would subject an agency to potential claims of privacy violations by individual applicants.
In order to facilitate our review, and pursuant to KRS 61.880(2)(c), Ms. Coleman furnished this office with copies of the records in dispute.
Our review of those records, coupled with the unique circumstances surrounding Mr. Moberly's application for appointment as president of EKU, compel us to depart from our earlier decisions resolving the issue of access to the applications and resumes of unsuccessful applicants for public employment against disclosure. Resolution of this appeal turns not on the level of responsibility attached to the position for which application was made, or Mr. Moberly's status as a state representative and EKU official, but instead turns on the fact that the protected privacy interests upon which the earlier decisions was postulated are no longer implicated when the applicant's identity has been disclosed and the fact of application publicly acknowledged by the applicant.
"The unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994) citing KRS 61.871. In spite of this "manifest intention to enact a disclosure statute," the General Assembly has mandated that certain records should be excluded from public access. Id. Among these are records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a). From this exemption:
[W]e must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality . . . suggest[ing] an absence of legislative intent to create unrestricted access to records.
Beckham, at 578. In denying access to public records under the exemption, the burden of proof rests with the public agency. KRS 61.880(2)(c).
The courts have established the standard by which we analyze the propriety of a public agency's reliance on KRS 61.878(1)(a) to deny access to public records. In
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the Kentucky Supreme Court recognized that the Open Records Act "exhibits a general bias favoring disclosure, " Id. at 327, and formulated a balancing test in which the public's interest in insuring that its agencies are properly executing their statutory functions is measured against an individual's interest in the nondisclosure of records containing information that touches upon the intimate or personal features of his or her life. Resolution of the question of the propriety of the agency's reliance on KRS 61.878(1)(a) turns on whether the offense to personal privacy which would result from disclosure of the information outweighs the benefit to the public. As noted, the "clearly unwarranted" language found in KRS 61.878(1)(a) tips the scales in favor of disclosure.
With specific reference to application materials submitted by unsuccessful applicants, this office has consistently affirmed agency denial of access on the basis of KRS 61.878(1)(a). For example, in OAG 90-113, 95-ORD-38, 96-ORD-1, 97-ORD-72, 00-ORD-90 and 02-ORD-221, the Attorney General held that the public agencies to which the requests were directed properly withheld applications and resumes of unsuccessful applicants whose identities were not known. Synthesizing the rationale underlying these decisions, in 02-ORD-221 we observed:
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).
02-ORD-221, p. 2. Where, as here, the applicant's identity has been disclosed and the applicant has publicly confirmed that he is, or was, an applicant, 1 his privacy interest is significantly reduced if not eliminated altogether.
Against this negligible privacy interest we weigh the competing public interest in disclosure of the application materials of unsuccessful applicants. That interest has also, in general, been characterized as nominal at best. Although the public has a significant interest in the competence of the applicants public agencies hire and the agencies' adherence to proper hiring practices, as reflected in the successful applicants' application materials, the public's interest in disclosure of the application materials of unsuccessful applicants is reduced insofar as the latter application materials are "unnecessary for the public to evaluate the competence of people who were appointed" and "may be misleading because the appointments were made on the basis of both the applications and the interviews."
Core v. United State Postal Service, 730 F.2d 946, 949 (4th Cir. 1984) cited in 00-ORD-90, p. 6. Regardless of whether there is a greater public interest in Mr. Moberly's application materials in light of subsequent legislative action, as Mr. Fleischaker urges, we find that because the privacy interests implicated in the appeal before us are negligible, the scales tip in favor of disclosure.
We have reviewed the disputed records in this appeal, consisting of Mr. Moberly's letter of application and vita, three letters of recommendation, and two letters relating to the application process. Based on the reasoning set forth above and the unique facts before us, we find that EKU's reliance on KRS 61.878(1)(a) as the basis for denying The Courier-Journal access to these records was misplaced. This decision should not be construed to establish a rule of mandatory disclosure for all applications submitted by unsuccessful applicants. Nor should it be construed to require EKU, or any other agency, to make "the discretionary determination whether an applicant is a public official or persona of such nature as to alleviate them of the right to privacy protected by the statute" each time the agency is presented with a similar request. Instead, we narrowly hold that the agency need only make a factual determination that the applicant has publicly confirmed his application for appointment, and having made that determination, review the application materials to insure that no other protected interests are implicated. 2 In so holding, we do not impose an additional duty on the agency but instead give deference to the judicial recognition that an analysis of the propriety of an agency's invocation of KRS 61.878(1)(a) is "intrinsically situational. " Kentucky Board of Examiners, at 327, 328. Given the fact that Mr. Moberly publicly confirmed that he was an applicant for the position of president at EKU, we conclude that EKU was foreclosed from invoking the exception in support of its denial of The Courier-Journal'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 proceeding.
Jon L. FleischakerDinsmore & Shohl1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
Kacey M. ColemanEastern Kentucky UniversityCoates Bldg., Room 113, CPO 40ARichmond, KY 40475-3101
Footnotes
Footnotes
1 In contrast, if an applicant's identity is the subject of mere speculation or rumor, and has not been confirmed by the applicant, we believe the applicant continues to enjoy a protected privacy interest in his or her application materials.
2 Mr. Moberly's application contains his home address and telephone number along with his marital status and number of dependents. It also contains what may be the home addresses, telephone numbers, and e-mail addresses of the individuals listed as his references. In Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828 (1994), the Kentucky Court of Appeals determined that such information is "generally accepted by society as details in which an individual has at least some expectation of privacy, " notwithstanding the fact that such information is often publicly available through other sources. Here, as in Zink, id., we deal "not in total nondisclosure, but with an individual's interest in selective disclosure, " and find that EKU may properly redact this information before releasing the materials to The Courier-Journal.