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 Bullitt County Board of Education violated the Open Records Act in the disposition of Roxie M. Clark's April 4, 2003 request for copies of all records in which she is mentioned by name or otherwise identified, including her personnel file, as well as Richard Bolus's personnel file. For the reasons that follow, we find that the Board's response to Ms. Clark's request constituted a partial violation of the Act.
In a response dated April 4, 2003, Assistant Superintendent for Personnel Helen Harrah notified Ms. Clark that her request for copies of Mr. Bolus's file would not be honored. She explained:
We are unable to grant this request in accordance with State of Kentucky 61.878 [sic] and Board Policy 03.25. "The exemptions in the Open Records Law provided in subsection (1) are permissive, not mandatory and, since Kentucky has no privacy law, a records' custodian has the authority to release exempted records unless there is some statute which makes the records confidential; there is no such statute pertaining to personnel records and, therefore, a school superintendent would have the authority to make teacher personnel records available to the public unless the school district had a policy of keeping the records confidential. In such case, every person requesting to inspect the records should be treated alike."
It was Dr. Harrah's position that Bullitt County Board of Education Policy 03.15 "keep[s] personnel records confidential, " and precluded access to Mr. Bolus's personnel file. She did not address Ms. Clark's request for a copy of her own personnel file. Shortly after Dr. Harrah issued this response, Mr. Norman R. Lemme, an attorney representing Ms. Clark, initiated this appeal.
In supplemental correspondence directed to this office following commencement of Mr. Lemme's appeal, Board Counsel Eric G. Farris elaborated on his client's position. He advised that Ms. Clark:
is welcome any time between the hours of 8:30 a.m. and 4:30 p.m. to inspect her personnel file at the office of the Bullitt County Board of Education, 1040 Highway 44 East, Shepherdsville, Kentucky, and to secure copies of the contents of that file at the rate of ten cents per page. Ms. Clark has taken advantage of this opportunity in the past, most recently on November 22, 2002. The Assistant Superintendent of Personnel, Dr. Helen Harrah, assumed that Ms. Clark knew that she had that right, having previously exercised it.
In response to Ms. Clark's request for copies of Mr. Bolus's personnel file, Mr. Farris provided her with a copy of Mr. Bolus's resume and indicated that there are no disciplinary actions in that file. It was his position, however, that the remaining records in the file are "excluded from disclosure under KRS 61.878(1)(a) as items containing information of a personal nature where a public disclosure would constitute a clearly unwarranted invasion of personal privacy. "
In order to facilitate our review of the question on appeal, and pursuant to KRS 61.880(2)(c), on April 21, 2003 this office requested that the Board provide us with a copy of the remaining records in Mr. Bolus's personnel file. On April 24, Mr. Farris furnished us with copies of those records. Our review of the records suggests that the Board exercised an overabundance of caution in relying on KRS 61.878(1)(a) as the basis for denying Ms. Clark access to all records in Mr. Bolus's personnel file with the exception of his resume/ application, and we find that its reliance on the exception was partially misplaced. Further, we find that the Board erred in failing to respond to Ms. Clark's request for copies of the records contained in her own personnel file, notwithstanding the Board's assumption that "she knew she had the right [to inspect and obtain copies of her file], having previously exercised it." Finally, we find that the Board's written policy relative to disclosure of personnel files does not constitute a sufficient legal basis for denying access to any of the records identified in Ms Clark's request.
KRS 61.878(1)(a) 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 [.]
In Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), the Kentucky Court of Appeals opined that "we . . . determine whether . . . an invasion is warranted by weighing the public interest in disclosure against the privacy interests involved." Continuing, the court observed:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act . . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink at 828, 829. Accordingly, if a public record, in this case a personnel file, contains information of a personal nature, we are obligated to determine if the privacy interests that are implicated outweigh the public's right to know that public agencies are properly executing their statutory duties, including the duty to insure that their employees are duly qualified to hold the positions for which they were employed.
In defining the public's right of access to public employee personnel files, the Attorney General has recognized that KRS 61.878(1)(a) "applies only to matters entirely unrelated to the performance of public employment." OAG 78-133, p. 3. "The privacy rights of the public employee extend only to matters which are not related to the performance of his work." OAG 80-43, p. 3. In a later opinion, we summarized our views holding that "[a] personnel folder of a public employee by its very nature is a mixture of documents which are subject to inspection and which may be excluded from . . . inspection. OAG 88-53, p. 3. Conversely, the Attorney General has recognized that records relating to the public employee's public duties, and his qualifications for the position he holds, are subject to public inspection inasmuch as the public's interest in disclosure outweighs any remote privacy interest that might be implicated. OAG 76-717; OAG 87-37; 94-ORD-36; 97-ORD-66; 00-ORD-126.
Guided by these principles, we have reviewed the documents in Mr. Bolus's personnel file and determined that the following records must be disclosed after personal information, including home address, home telephone number, social security number, date of birth, and race are redacted pursuant to KRS 61.878(1)(a) as personal information the disclosure of which does not advance the citizen's right to be informed:
1. Certified Employee Record
2. Bullitt County Board of Education Employee Record Review Sheet/ File Directory
3. Teacher Certificate
4. Contract for Employment - Substitute Teacher (July 2002)
5. Contract for Employment - Substitute Teacher (July 2001)
6. Contract for Employment - Substitute Teacher (December 2000)
7. Contract for Employment - Substitute Teacher (September 1999)
8. September 12, 2001 letter from Marvin Stewart to Bob Korwatch
9. Department of Education Bureau of Finance Standard Invoice (07/16/01)
10. December 12, 2002 letter from Jennifer Wooley to Bob Korwatch
11. March 6, 2002 Memorandum from Robert Korwatch to Richard Bolus
12. January 11, 2001 Memorandum from Jim Bearden to Richard Bolus
13. New Employee Notification - Personal Information 1
14. Employee Activation Notice - Personal Information
15. New Employee Notification - Personal Information (10/28/99)
16. New Employee Notification - Personal Information dated 09-02-99 2
17. Employee Activation Notification - Personal Information printed on (09/02/99)
18. Bullitt County Substitute Employee Profile
19. June 4, 2001 letter from Jim Bearden to Richard Bolus
20. October 5, 1999 letter from Jim Bearden to Richard Bolus
21. October 5, 1999 letter from Jim Bearden to Richard Bolus with handwritten response
22. October 6, 1999 letter from Richard Bolus to Betty Lee 3
23. Substitute Teacher Application (already disclosed)
24. Forms required for substitute teaching (11/14/00)
25. Forms required for substitute teaching (06/03/99)
26. Memorandum from Jim Bearden to substitute teacher re: paycheck
27. Bullitt County Substitute Employee Profile
28. Instructional Experience Verification for Salary Determination
29. Drug-Free Workplace Notice (signed and dated 12/06/00)
Consistent with the reasoning set forth above, and subject to the need to redact the personal information previously identified, we find that those records must be disclosed to Mr. Lemme's client, Ms. Clark.
Although we are unable to locate any prior decisions of the office directly on point, we find that the Board must also disclose the national and state criminal history background checks, required by KRS 160.380 as a condition of employment, that are located in Mr. Bolus's file. Given the compelling public interest in confirming that school employees charged with the supervision and education of our students are of good character, the absence of any statutory restriction on access, and the failure of the Board to articulate a specifically protected privacy interest relative to these records, we conclude that their disclosure does not constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a).
We affirm the Board's action in denying Ms. Clark access to the following records on the basis of KRS 61.878(1)(a) and find that they may properly be withheld:
1. Boston College School of Education Transcript per 00-ORD-126 and OAG 91-48
2. Eastern Kentucky University Graduate School Transcript, id.
3. May 29, 2002, Substitute Teacher Evaluation Form per 92-ORD-1145
4. Form W-4 Employee Withholding Allowance Certificate (1999) per 96-ORD-274
5. Form W-4 Employee Withholding Allowance Certificate (1998) per 96-ORD-274
6. KTRS Retiree Information per 02-ORD-183
7. Photocopy of Social Security Card per Zink v. Commonwealth, above
8. Reference evaluation dated April 16, 1999 per 92-ORD-1145 and 00-ORD-29
9. Jefferson County Public Schools Annual Teacher Performance Evaluation per 92-ORD-1145
10. Reference evaluation dated April 19, 1999 per 92-ORD-1145 and 00-ORD-29
11. Fingerprints (dated June 3, 1999)
In the case of these records, we find that Mr. Bolus's privacy interest, confirmed in the referenced open records decisions, outweighs the public's interest in disclosure, and that the Board is not obligated to disclose them.
We do not believe that Board Policy 03.25 provides a legally sufficient basis for the denial of all or any portion of Ms. Clark's request. As this office has repeatedly observed, a public agency cannot, by resolution, ordinance, policy, or other device, regulate access to records in a manner which conflicts with the Open Records Law. See, e.g., 97-ORD-22; 92-ORD-1136; OAG 82-158. "In enacting the Open Records Law, KRS 61.870-61.884," the Attorney General has declared, "the General Assembly has preempted the field of inspection of public records . . . [and an agency cannot] make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided by KRS 61.878." OAG 82-158, p. 1. Therefore, the Board's policy relative to nondisclosure of personnel files is of no legal or practical effect.
In closing, we note that the Board's assumption that Ms. Clark was aware of her right to inspect her personnel file did not relieve it of the statutory duty to respond to her request in writing. Moreover, that statutory duty was not discharged by notifying her that she is entitled to inspect her file. If Ms. Clark wishes to obtain copies of the records in her personnel file, as opposed to conducting an on-site inspection of that file, we believe that the Board is obligated to mail her copies of those records upon prepayment of reasonable copying and postage charges, even though she apparently resides and works in Bullitt County, inasmuch as she has fulfilled her obligation to inspect the records "as recently as November 22, 2002," as a condition to obtaining copies. KRS 61.872(3)(a) and (b) as construed in 96-ORD-142. We urge the Board to review the cited provisions and implement policies aimed at insuring full compliance with the Open Records Act.
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.
Norman R. LemmeLemme Law OfficeP.O. Box 770319 South Buckman StreetShepherdsville, KY 40165-0770
Helen HarrahAsst. Superintendent for Personnel Bullitt County Public Schools1040 Highway 44 EastShepherdsville, KY 40165
Eric Farris, Attorney forBullitt County Schools193 South BuckmanP.O. Box 460Shepherdsville, KY 40165
Footnotes
Footnotes
1 In addition to the items listed above, deduction information may also be redacted from this document per KRS 61.878(1)(a) as construed in 96-ORD-274.
2 See note 1 above.
3 Mr. Bolus's PIN number may also be redacted per KRS 61.878(1)(a).
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