Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Danville City Commission, acting through its City Manager Screening Committee, violated the Kentucky Open Records Act in initially denying the request of John A. Nelson, Managing Editor of The Advocate Messenger, for "documents which spell out the qualifications of each of the eight remaining candidates for the position of city manager. " Because application materials submitted by unsuccessful applicants for employment with a public agency are exempt from disclosure under KRS 61.878(1)(a), the City Commission properly relied upon this exception in denying Mr. Nelson access to the requested records.
In a letter directed to Donna Groves, the Danville City Clerk, on November 18, 2003, Mr. Nelson clarified that his request on behalf of The Advocate "would involve any existing record-including resumes, job applications, etc.-used by the search committee or the city commission to review these candidates" but conceded that the names could be redacted from those documents. 1 Upon receiving Mr. Nelson's request, Ms. Groves directed it to Mr. Edward D. Hays, the Danville City Attorney. In a letter dated November 24, 2003, Mr. Hays responded to Mr. Nelson as follows:
It is my understanding that the City Manager Screening Committee met on Saturday, November 22, 2003, and pursuant to action taken on that date in open session, selected the top six (6) candidates for the position of Danville City Manager, identifying said candidates by number only, and did on that date transfer all records pertaining to the matter from the custody of Donna Groves, a member of the selection committee, to the same Ms. Groves in her capacity as City Clerk for the City of Danville, Kentucky. This action was reported by Ms. Groves to the Danville City Commission in [an] open session of the meeting of the Danville City Commission on Monday, November 24, 2003.
Pursuant to the above, the Screening Committee has no records in its possession or custody or subject to its control and thus cannot provide you with any of the documents which you have requested. All records pertaining to this matter[] were received and accepted by the Danville City Commission on Monday, November 24, 2003. Thus, the records[] only came into the possession and custody of the Danville City Commission earlier today, November 24, 2003.
Because Mr. Nelson's request "was made at a time when the Screening Committee had possession," Mr. Hays assumed that Mr. Nelson wanted the request "transferred to the Danville City Commission as the present custodian of the records," and, therefore, indicated that he would "undertake to review the records and provide [him] with a response within (3) business days from [that day]." As a preliminary response, Mr. Hays expressed concern "as to whether or not [Mr. Nelson's] request [could] be honored without revealing the identity of the candidates. " According to Mr. Hays, 96-OMD-97, OAG 77-674 and OAG 77-392 "make it clear that it is permissible for a public agency to keep the identity of candidates confidential in order to avoid any disruption in their relationship with their current employer." As emphasized by Mr. Hays, in 96-OMD-97 the Attorney General "went so far as to determine that the Board of Regents of Northern Kentucky University did not have to make public the name of the person selected interim president until such time as a contract of employment was actually negotiated and executed." 2 However, Mr. Hays welcomed the opportunity to "review and consider" any specific authority that Mr. Nelson could provide in support of his proposition that current interpretations of the law by the Attorney General entitle him to the documents in redacted form.
In a response dated the same day, Mr. Nelson took issue with Mr. Hays's "interpretation that the records [had] not been in possession of the city." According to Mr. Nelson, the Screening Committee "is an arm of the city, just as any other committee so appointed would be, and the city is by virtue in control of the records, not to mention the presence in both cases of the official custodian of the records, [Ms. Groves]." Because of the "confusion regarding official possession" of the requested records, however, Mr. Nelson was "happy to give [Mr. Hays] until [November 26th] to comply with" the request. In his view, revealing the employment experience, educational background and related history of an individual would not reveal the identity of the individual. As correctly observed by Mr. Nelson, The Advocate does not have the burden of proving that the requested documents constitute public records, "but rather [it is the City Commission's burden] to prove otherwise."
On November 26, 2003, Mr. Hays denied Mr. Nelson's request on behalf of the City, citing 96-ORD-01 as authority for his position that "applications of unsuccessful applicants for public employment are excluded from public inspection by operation of KRS 61.878(1)(a)," by virtue of which "nondisclosure of records is permitted when those records contain 'information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of person privacy. '" Maintaining the validity of his preliminary response, Mr. Hays reiterated the importance of 96-OMD-97. Given the expectation of privacy to which applicants for the position of City Manager are entitled pursuant to this provision, Mr. Hays did not feel that the City could release the records requested "without violating the rights of those individual applicants who [were] seeking the position." It is from this denial that Mr. Nelson now appeals.
On appeal, Mr. Nelson explains that the search for the former City Manager's replacement began immediately upon his departure with the appointment of a search committee consisting of employees and citizens "given the authority to advertise for, accept and review resumes of interested applicants" and then offer the City Commission a list of finalists from which to choose. According to Mr. Nelson, the "stated purpose for the appointment of the committee was to involve the public in the hiring process" although it "was not clear whether this was in response to the public's outcry over the secrecy surrounding the departure of the former city manager, which had resulted in the formation of a citizen's action group and formal charges against the mayor and two commissioners before the city's ethics board." Apparently, the Committee met several times, reducing a list of 24 applicants to eight and then to six, although it "reportedly did not learn the names of the applicants until it conducted interviews" of the eight finalists. At that time, "there appeared to be documents [upon] which the agency had already acted," documents that closely "and perhaps precisely" resemble those at the center of this dispute.
In support of his position, Mr. Nelson argues "[t]here is clearly a significant public interest in this matter because of the circumstances surrounding the departure of the former city manager and questions that have been raised about how the City Commission has performed its duties relative thereto." Also weighing in favor of disclosure in his view is the fact that the interim city manager was one of the eight finalists. Since she has been the assistant to two former city managers, including the most recent, legitimate questions regarding her qualifications as compared to the other applicants could be raised if she was not selected. According to Mr. Nelson, the requested information would not enable someone to identify a candidate. Thus, there is "no issue of personal privacy" and KRS 61.878(1)(a) does not apply.
In a supplemental response received by this office following commencement of the instant appeal, Mr. Hays again relies upon 96-OMD-97 and 96-ORD-1 along with the authorities cited in his letters to Mr. Nelson. However, he adds "that it was never the intention of the City of Danville to withhold indefinitely the identity of candidates for the position of City Manager. " According to Mr. Hays, the initial request from Mr. Nelson was received prior to the City Commission learning the identity of the candidates. It is his understanding that even the Committee members, with the exception of one, did not know the names of the candidates as they were identified by number only until very late in the selection process. Since it "was always the intention of the City Commission to release the names of the finalists for the position" upon learning their identities, the City Clerk released the name, educational background and current position of each of the six finalists on December 10, 2003.
Although Mr. Nelson acknowledges receipt of six of the eight documents requested, he continues to request a decision since "the documents were received late and two were missing." Despite Mr. Hays's assertion to the contrary, Mr. Nelson contends that "it is evident there was no intention to give [The Advocate] the redacted records, much less the names, at any time." He further contends that the reason cited by the City Commission for refusing to disclose the requested records "doesn't matter" since "there are surely many documents in the public record that commissioners have never seen" and the "custodian of the record[s] is the city clerk, not the city commissioners." In his view, "the city's willingness to [reveal] the names is irrelevant" since the names were not requested.
In response to Mr. Nelson's arguments on appeal, Mr. Hays clarifies that the City Commission "was apprised only of the top six candidates selected by the [Committee], not eight." Although "it may have been reported that the [Committee] had narrowed its search to eight persons," Mr. Hays does not believe that the identity of those eight persons was ever divulged to the City Commission nor does he know the names of the other two finalists. According to Mr. Hays, the City was not required to disclose the requested records but did so "because it was the choice of the City Commission to make such information public at the appropriate time." Based on the following authorities, we conclude that Mr. Hays is correct in this assertion.
"The unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure 'may cause inconvenience or embarrassment to public officials or others.'" Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing KRS 61.871. Despite this "manifest intention to enact a disclosure statute," the General Assembly has mandated that certain records are not subject to public inspection. Among the records excluded from application of the Act are those "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 the exclusionary language contained in KRS 61.878(1):
[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, supra, at 578; 03-ORD-084, p. 4. When denying access to public records under this exception, the burden of proof rests with the public agency. KRS 61.880(2)(c).
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 established the standard by which we must analyze the propriety of a public agency's reliance on KRS 61.878(1)(a) in denying access to public records. Recognizing that the Open Records Act "exhibits a general bias favoring disclosure, " the Court formulated a balancing test under which the interest of the public's right to expect its agencies to properly execute their statutory functions is measured against the interest of individuals in the nondisclosure of records containing information that touches upon the intimate and personal features of their lives. Id. at 327-328. A determination of whether a public agency properly relied upon KRS 61.878(1)(a) in denying access to public records hinges on whether the offense to personal privacy that would result from disclosure of the information outweighs the benefit to the public and is "intrinsically situational." Id. at 328; 03-ORD-084, supra, p. 4. As we recently observed, the "clearly unwarranted" standard "tips the scales in favor of disclosure. " Id.
Conclusively resolving the question of whether an invasion of privacy is warranted with respect to the applications of unsuccessful applicants for public employment, we have observed:
[R]egarding current or former employees (as distinguished from applicants not selected or hired) inspection of information . . . [that appears on an application for public employment and that is] reasonably related to qualifying for a public position . . . does not involve the release of information of a personal nature such that public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. . . .
OAG 89-90, p. 8.
We have consistently upheld the denial of access to application materials submitted by unsuccessful applicants for public employment on the basis of KRS 61.878(1)(a). 03-ORD-84, p. 5. For example, in 02-ORD-221, 00-ORD-90, 97-ORD-72, 96-ORD-1, and 95-ORD-38, the Attorney General determined that the public agencies to which the requests were directed properly withheld applications and resumes of unsuccessful applicants whose identities were not known. Id. In OAG 90-113, we expressly found that applications and resumes submitted by unsuccessful applicants for public employment are exempt from disclosure and copying under the Open Records Act pursuant to KRS 61.878(1)(a). See 96-ORD-1, supra. At page 5 of 00-ORD-90, supra, we adopted the following analysis from pages 2 and 3 of 97-ORD-72:
These opinions were premised on the reasoning found in Core v. United States Postal Service, 730 F.2d 946 (4th Cir. 1984). Holding that the Freedom of Information Act, 5 U.S.C.A. sec. 552, compels disclosure of information pertaining to the employment histories of successful applicants for federal employment, but precludes disclosure of other applications, the Fourth Circuit Court of Appeals identified the privacy interests at stake. Recognizing that the identities of applicants selected for positions are known, and that disclosure [of the fact] that they wished to leave their former employment cannot embarrass them since this fact is also known, the court reasoned that the release of their applications "would cause but a slight infringement of their privacy. " Core at 948. Continuing, the court observed:
Core at 948.
Turning to the issue of the unsuccessful applicants, the court concluded that "the balance tips the other way." Core at 948. At page 949, the court stated:
Although the court did not comment on it, the unsuccessful employees might also be embarrassed by disclosure that they wished to leave their present employment.
Against these significant privacy interests, the court weighed the minimal public interest in disclosure, observing:
Core at 949. Indeed, the court noted, "comparisons of all applications may be misleading, because the appointments were made on the basis of both the applications and the interviews." Core at 949.
See also 96-ORD-1, supra.
Another reason why disclosure of records relating to unsuccessful applicants would not serve the public interest is that it might prove detrimental to the hiring process, "resulting in less qualified but thicker skinned persons applying." Arizona Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 806 P.2d 348, 352 (1991). We find this reasoning to be equally dispositive on the facts presented. Because the instant appeal presents no reason to depart from this wealth of precedent, the same result necessarily follows. To summarize, we find that the public interest in ensuring the City Commission's ability to attract the most qualified applicants for the position of City Manager is more compelling than its interest in records relating to unsuccessful applicants, and that the privacy interests of the unsuccessful applicants are paramount to both. Accordingly, the City Commission was not obligated to disclose any of the requested records and, therefore, did not violate the Open Records Act in delaying disclosure of the records or in ultimately disclosing only those records relating to the six finalists. In light of this determination, it is unnecessary for us to address the peripheral arguments raised by Mr. Nelson.
A party aggrieved by this decision may appeal it by initiating an 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.
John A. NelsonThe Advocate Messenger330 S. FourthP.O. Box 149Danville, KY 40423-0149
Donna GrovesCity Clerk P.O. Box 670Danville, KY 40423
Edward D. HaysSheehan, Barnett, Hays, Dean & Pennington, P.S.C.P.O. Box 1517Danville, KY 40423-1517
Footnotes
Footnotes
1 Mr. Nelson also credits a representative of this office with advising him that "current interpretations of the law entitle [the City Commission] to withhold the names of these candidates but [ The Advocate ] is "entitled to the information in the documents regarding their qualifications, " a view that he reiterates on appeal. "Acting on that information," The Advocate made the subject request. To the extent that Mr. Nelson relied upon this statement in making his request, his reliance was misplaced. While we regret any confusion, informal communication of this nature is necessarily based on incomplete facts and, therefore, lacks precedential value.
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2 More precisely, the decision of the Attorney General was that if an offer of employment had not been made and accepted prior to or at the Board's meeting, there was no contract in effect at that time. "In the absence of a contract between the parties[,] KRS 61.810(1)(f) would permit the holding of closed or executive discussions between those parties relative to contractual negotiations which might subsequently result in the appointment of the person to a position by the public agency. " 96-OMD-97, p. 2. As evidenced by the foregoing, 96-OMD-97 is not directly on point. It does resolve a parallel issue in favor of the City Commission, however, albeit in a different context.
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