Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in denying Bertha D. Story's request for copies of certain Cabinet records pertaining to the interview and selection process for an Eligibility Maintenance Branch Manager position. For the reasons that follow, we affirm the Cabinet's partial denial of Ms. Story's request.
Ms. Story submitted a request to the Cabinet requesting copies of the following records relevant to this appeal: "the interview questions and responses, including, any and all notes recorded by the interview panel [names of panel omitted] during the interview for the Eligibility Maintenance Branch Manager position" and copies of Roni-Beth Crouch's "year end 2000, 2001, 2002 Employee Performance Evaluations." 1
Responding to the request on behalf of the Cabinet, Ann Truitt Hunsaker, Assistant Counsel, Office of Legal Services, denied these two portions of Ms. Story's request. Addressing first the request for the interview questions and answers, including notes recorded by the interview panel, Ms. Hunsaker advised:
These documents are not provided. In Open Records Decision 01-ORD-88, the Attorney General determined that interview questions and responses may be considered preliminary documents that are not subject to disclosure pursuant to KRS 61.878(1)(i), which provides an exemption for "Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. " In the same opinion, the Attorney General determined that interview questions and answers may also be considered "examination materials" and not subject to disclosure pursuant to KRS 18A.020(4), which gives an applicant for employment the right to inspect and to copy any record and preliminary documentation pertaining to him, with the exception of examination materials. The interview questions and answers sheets are considered "examination materials," in that the documents are used to evaluate an applicant's qualifications for the position and may be used again in future interviews. To release the questions and answers provided by the applicants would give an unfair advantage to applicants in future interviews.
The Cabinet also denied Ms. Story's for copies of Roni-Beth Crouch's "year end 2000, 2001, 2002 Employee Performance Evaluations." In denying this request, Ms. Hunsaker explained:
Ms. Crouch's evaluations are not provided. The Attorney General recognized in OAG 77-394 that an employee's performance evaluations are a matter of opinion, do not constitute any action on the part of the agency, and may be withheld from public disclosure pursuant to the privacy exception in KRS 61.878(1)(a). This position is also supported by OAG 79-348; OAG 80-58; OAG 82-204; OAG 83-286; OAG 86-15; OAG 89-90.
As a result of the Cabinet's denial of her requests for copies of these documents, Ms. Story initiated the instant appeal. In her letter of appeal, Ms. Story challenges the Cabinet's claim that the documents are exempt from disclosure. She argues:
I do not agree because the information I seek was used in the selection process for a promotion. I was advised that the person selected excelled in four (4) of the five (5) criteria cited in KRS 18[A].075 and 101 KAR 1:400 related to promotions. I do not believe this is the case and respectfully request your assistance with obtaining this information.
After receipt of notification of the appeal and a copy of the letter of appeal, Ms. Hunsaker provided this office with a response to the issues raised in the appeal. In her response, Ms. Hunsaker reiterated her arguments set forth in her initial response, and further advised, in relevant part:
As Ms. Story stated, we advised her in a meeting that the individual selected for a promotion, after giving appropriate consideration to the factors required by the statute and regulation, had the most outstanding scores in four out of the five areas we are required to consider. Ms. Story stated in her letter that she "does not believe this to be the case" and requested the Attorney General's assistance in obtaining (1) the inspection of performance evaluations of the successful candidate; and (2) notes taken by the panelists as it relates to the responses given by those interviewed.
By way of background it might be helpful for you to know that we met with Ms. Story about the promotion out of courtesy to her and not because we are required by law or regulation to do so or to explain why someone was promoted to a position.
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It is also important for you to know that, as Assistant Counsel to the Cabinet, I requested the panelists make these notes in anticipation of future personnel action and litigation. Therefore, I consider the notes to be protected by attorney client privilege communication.
For the reasons that follow, we find that the Cabinet's denial of the records at issue in this appeal did not violate the Open Records Act.
We affirm first the Cabinet's denial of Ms. Story's request for "the interview questions and responses, including, any and all notes recorded by the interview panel" during the interview for the Eligibility Maintenance Branch Manager position, under authority of KRS 18A.020(4) . That statute, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 2 provides:
Upon written request a state employee, an applicant for employment, and an eligible on a register shall have the right to inspect and to copy any record and preliminary documentation and other supporting documentation that relates to him, except that an applicant, an eligible, or a state employee shall not have the right to inspect or to copy any examination materials.
(Emphasis added.)
In 02-ORD-168, in construing the application of similar exclusionary language in KRS 61.878(3), we discussed exceptions to a public employee's right to access to records that related to him and the definition of "examination" as used in that statute. In that decision, we stated:
There are, however, four exceptions to a public agency employee's broad right of access to his own records. A public agency employee is not entitled to inspect records or information the disclosure of which is prohibited by federal law or regulation (KRS 61.878(1)(k)), or records or information made confidential by enactment of the General Assembly (KRS 61.878(1)(l)). Nor is the employee entitled to inspect or to copy " any examination or any documents relating to ongoing criminal or administrative investigations by an agency." KRS 61.878(3) (emphasis added). By its express terms, KRS 61.878(3) authorizes public agencies to withhold examinations of any kind or character from the public employee to whom they relate.
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While we therefore cannot affirm the [public agency's] denial of [the requester's] request on the basis of KRS 61.878(1)(g), we find that the exclusionary language in KRS 61.878(3) supports its position. Webster's New World Dictionary 487 (2d ed. 1974) defines the noun "examination" as "an examining or being examined; investigation; inspection; scrutiny; inquiry; testing", and the verb "examine" as "to look at or into critically or methodically in order to find out the facts, conditions, etc. of; . . . scrutinize." While an examination is commonly understood to involve an objective assessment of knowledge and skill, these definitions suggest a broader meaning which encompasses the subjective elements of the promotional examination and records relating thereto that are the subject of this appeal. We conclude that [the requester's] broad right of access to records relating to him under KRS 61.878(3) must here yield to the exclusionary language found in the last sentence of that provision because the record he seeks is an examination. Accord, 98-ORD-137 (Kentucky State Police properly denied trooper's request for sergeant's promotional examination on the basis of KRS 61.878(3)).
In the instant appeal, the Cabinet denied Ms. Story's request under the exclusionary language found in the last sentence of KRS 18A.020(4). 3 The Cabinet explained that the requested interview questions and answers sheets were considered "examination materials," in that the documents were used to evaluate an applicant's qualifications for the position and may be used again in future interviews and to release the questions and answers provided by the applicants would give an unfair advantage to applicants in future interviews. Under these circumstances, we conclude that the requested interview questions and responses, including, any notes recorded by the interview panel, constitute "examination materials," the disclosure of which is prohibited by KRS 18A.020(4). Accordingly, we affirm the Cabinet's denial of this request. 02-ORD-168.
We address next the Cabinet's denial of Ms. Story's request for Roni-Beth Crouch's "year end 2000, 2001, 2002 Employee Performance Evaluations," under authority of KRS 61.878(1)(a).
KRS 61.878(1)(a) authorizes the nondisclosure of:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In construing the application of KRS 61.878(1)(a) to public employee evaluations, this office stated, in 99-ORD-137:
In a line of decisions dating back to 1977, the Attorney General has held 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. OAG 77-394; OAG 79-348; OAG 80-58; OAG 82-204; OAG 86-15; OAG 89-90; 92-ORD-1375; 94-ORD-54; 94-ORD-132; 96-ORD-51; 96-ORD-275; 99-ORD-14; 99-ORD-42.
In addition, in 99-ORD-128, we stated:
Moreover, we have recognized that both the evaluator and the person being evaluated have a substantial privacy interest in the evaluation that generally outweighs the public interest in inspecting the record. This privacy interest is premised on the recognition that "disclosure of . . . evaluations may spur unhealthy comparisons, breeding discord in the work place, and result in injury and embarrassment to the employee." 92-ORD-1145, p. 4. The public's interest in inspecting evaluations of rank and file employees is correspondingly reduced since these employees do not directly control the management and operation of a public agency.
Compare, 92-ORD-1145 (performance evaluation of school system superintendent is subject to disclosure because his performance has a direct bearing on the management of the school system and he has decreased expectation of privacy in the document) and 00-ORD-177 (evaluation of City Manager subject to disclosure as he is ultimately responsible for the management of city government and, thus, "the public's interest in his evaluation is heightened, and his expectation of privacy is correspondingly reduced.")
Thus, with rare exception, the Attorney General has affirmed public agency denials of open records requests for rank and file public employee evaluations. 02-ORD-197. We find no error in the Cabinet's denial of Ms. Story's request for the employee evaluations at issue, under authority of KRS 61.878(1)(a).
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 proceedings.
Bertha D. Story5317 Montfort LaneCrestwood, KY 40014
Beth SteinlePersonnel Branch ManagerCabinet for Health and Family Services275 E. Main Street, 5WDFrankfort, KY 40621-0001
Ann Truitt HunsakerAssistant CounselOffice of Legal ServicesCabinet for Health and Family Services275 E. Main Street, 5W-BFrankfort, KY 40621-0001
Footnotes
Footnotes
1 In addition to requesting copies of Ms. Couch's Employee Performance Evaluations, Ms. Story requested the following records pertaining to Ms. Couch: a copy of her Internal Mobility Application that she was to complete and provide at her interview; seniority - total month of state service verification; record of performance verification (whatever she provided at the interview) ; her current application on file with the Personnel Cabinet; her timesheets for 2000, 2001, 2002; and her current KY Personnel Position (PD) Description. Ms. Story was provided copies of all these records, except the record of performance verification, which the Cabinet indicated were the performance evaluations. In addition, in providing Ms. Story with a copy of Ms. Couch's current application on file with the Personnel Cabinet, the Cabinet redacted personal and private information, such as home address, social security number and date of birth. Ms. Story does not challenge this action in her appeal.
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2 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
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3 Although Ms. Story's request sought the interview questions and answers, including the interview panel's notes, of the successful applicant, rather than to records relating to her, we believe the same principles set forth in 02-ORD-168 regarding the disclosure of examinations and examination materials apply here. Accordingly, we adopt and incorporate by reference our reasoning set forth in 03-ORD-168 and apply it to the instant appeal.
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