Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Lexington Fayette Urban County Government, Division of Fire and Emergency Services, violated the Kentucky Open Records Act in denying the request of Scott White dated December 28, 2004, to inspect "all documents in any way mentioning or referring to Firefighter Dennis Lee Dickman" on the basis of KRS 61.872(6), 1 and denying his request to inspect "all written evaluations of every member of the 2004 Firefighter recruit class from January 2004 through the present" as "an unwarranted invasion of personal privacy pursuant to KRS 61.878(1)(a)." 2 It is the decision of this office that the position of the LFUCG is supported by governing precedent in all respects.
In a timely response, Assistant Fire Chief William Swope responded to Mr. White's request on behalf of the Division of Fire and Emergency Services. Having agreed to provide Mr. White with most of the requested records, Mr. Swope correctly observed:
With regards to item number 1 of your request for all documents mentioning or referring to Firefighter Dennis Dickman, the Attorney General has stated that a request for any and all records which contain a name is not a properly framed open records request, and that it generally need not be honored. Your blanket request places an unreasonable burden on the government and will not be honored under KRS 61.872(6). Item number 5 of your request involves all recruit evaluations; such evaluations are exempt from public inspection as an unwarranted invasion of personal privacy pursuant to KRS 61.878(1)(a). This item will be denied with the exception of Dennis Dickman's evaluation which will be made available for your inspection.
By letter dated January 4, 2005, Mr. White initiated this appeal from the Division's partial denial of his request. With respect to the former request, Mr. White argues that it is not properly characterized as a "blanket request" for information. In his view, "KRS 61.878(3) overrides any exemption and mandates that any record relating to a public agency employee must be made available to them," citing 93-ORD-19 and 95-ORD-97. "Given that Mr. Dickman was only employed from January 2004 through December 2004," Mr. White finds it "difficult to believe" that complying with his request would entail a voluminous search.
In addressing the latter request, Mr. White reiterates that he "specifically conceded that any personally identifiable information of a private nature could be redacted. " Citing 04-ORD-045, Mr. White concedes that "written evaluations of public employees are not generally subject to public inspection. " However, this general rule is premised on the privacy interests of particular rank and file employees in Mr. White's estimation. Because his request is not for "particular rank and file employee(s) evaluations," but a "class of evaluations" from which any personally identifiable information may be redacted, Mr. White contends that honoring his request "hardly injures" the privacy interests of the other 2004 cadets. 3 According to Mr. White, "it is appropriate from both a public oversight standpoint, as well as for the particular reasons here," to find the evaluations subject to public inspection "without identifying the cadet. " Because this view is contrary to governing precedent, this office must respectfully disagree.
Upon receiving notification of Mr. White's appeal from this office, Michael R. Sanner, Corporate Counsel, elaborated on the Division's position. Beginning with the denial of Item No. 5, Mr. Sanner correctly observes:
Mr. White's argument fails in several respects. First of all, the names of the 2004 firefighting recruit class are open to public inspection and were requested by and are being provided to Mr. White. Therefore, it should not be difficult to match the names of the cadets with the evaluations, if the evaluations were made public.
Mr. White states he is entitled to these evaluations so his client can compare evaluations with those of his fellow cadets. However, in 04-ORD-[]45 (the Attorney General [Decision] Mr. White cited) the Attorney General states [: "W]e have recognized that both the evaluator and the person being evaluated have a substantial privacy interest in the evaluation that 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 workplace, and result in injury and embarrassment to the employee." 04-ORD-045, citing 99-ORD-045 [p. 6], citing 99-ORD-128, citing 92-ORD-1145, p. 4.
Mr. White's purpose of comparing evaluations is specifically addressed by the Attorney General as one of the reasons for denying access to these written evaluations. Additionally, Mr. White does not address that the Attorney General has recognized that the evaluator as well as the employee has a substantial privacy interest that the evaluation remain confidential. 4
Acknowledging that KRS 61.878(3) "allows public employees to inspect records relating to them" even if those records otherwise qualify for exemption pursuant to KRS 61.878, Mr. Sanner clarifies that the denial of Mr. White's request was not based on KRS 61.878, but, rather, was denied as a "blanket request which may be denied as an undue burden under KRS 61.872(6)." 5 In relevant part, Mr. Sanner addresses the denial of Item No. 1 as follows:
The statute cited by Mr. White may override exemptions in KRS 61.878, but does not override the requirement that an open records request be properly framed.
The Attorney General has consistently held [that] as a precondition to inspection, a requesting party must identify with reasonable particularity those documents the party wishes to review. Specifically, at page 6 of 99-ORD-14, the Attorney General stated[: "I]t is our view that a request for any and all records which contain a name (emphasis added), a term or phrase is not a properly framed open records request and that it generally need not be honored. Such a request places an unreasonable burden on an agency to produce often incalculable numbers of widely dispersed and ill defined public records. "
As correctly observed by the Division, Mr. White's request for "all documents in any way mentioning or referring" to his client falls into the definition of a "blanket request" insofar as Mr. White does not identify the records being sought with reasonable particularity or limit the class in any way. 6 In order to comply with such a request, the Division would be required "to review every record, regardless of physical form or characteristic, which was prepared, owned, used, in the possession of, or retained by it, in the period identified in his request to determine if Dennis Lee Dickman's name appears in or on the record." However, the Attorney General has consistently held that honoring such a broadly framed request imposes an unreasonable burden on a public agency. A review of the relevant authorities validates this assertion.
As correctly argued by the LFUCG, this office has historically criticized "open-ended-any-and-all-records-that-relate-type requests" relating to a particular subject(s) or individual(s) such as the first request at issue. 03-ORD-040, p. 2; 99-ORD-14; 96-ORD-101. More specifically, the Attorney General has recognized:
A request for any and all records that contain a name [as is the case here], a term, or a phrase, is not a properly framed open records request, and . . . it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispensed and ill-defined records.
99-ORD-14, p. 5 (Emphasis added); 03-ORD-040. In construing KRS 61.872(6), this office articulated the following standard for determining whether a requester has described the records sought with sufficient precision:
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 92-56; OAG 91-58; OAG 89-81. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents.
94-ORD-12, p. 3; 02-ORD-246, p. 3; 99-ORD-14, p. 4. 7
Here, the records to which Mr. White requested access have not been identified with "reasonable particularity, " nor are the records of an identified, limited class. Given this lack of specificity, the Division could not estimate the number of records encompassed by the request or the amount of time its employees would expend in locating, retrieving and producing any responsive records in its custody. In short, Mr. White requested that the Division provide him with access to all documents relating to Mr. Dickman "in any way" or containing his name, which were generated from January 2004 through December 2004. To comply with such a request, the Division would be required to review every record, regardless of physical form or characteristics, which was prepared, owned, used, in the possession of or retained by it during that time period, to determine whether Mr. Dickerson's name appears in or on the record or the record relates in any way to him. For instance, his request would include home address lists, birthday lists, e-mail messages, routine correspondence, "and a myriad of other documents." 99-ORD-14, p. 5. Such a request is properly characterized as a "request for research to be performed, rather than for inspection of reasonably described public records, " and this office has consistently recognized that the Open Records Act does "not require public agencies to carry out research or compile information to conform to a given request." 04-ORD-090, p. 11, citing OAG 89-45, p. 3. Although "it is the legislative intent that public agency employees exercise patience and long-suffering in making public records available for public inspection, " OAG 77-151, p. 3, "public employees are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time." OAG 76-375, p. 4. As framed, Mr. White's request imposes an unreasonable burden on the Division.
Our conclusion is not altered by the application of KRS 61.878(3), 8 which this office has consistently construed as vesting public agency employees with the right to access otherwise exempt public records which relate to them. However, it has not been construed to relieve public agency employees of the duty to describe those records with sufficient specificity to enable the agency from which the records are being sought to identify, locate, and retrieve the records. 99-ORD-14, p. 6. Nor has it been construed to impose an additional duty on the agency to conduct an exhaustive search of records or embark upon an unproductive "fishing expedition" in an attempt to satisfy a nonspecific request. Id. To summarize, it is our view that a request for any and all records which contain a specific name, term, or phrase is not a properly framed open records request, and it generally need not be honored. Accordingly, the Division did not violate the Open Records Act in denying Mr. White's request for "all documents in [any way] mentioning or referring to Firefighter Dennis Lee Dickman" on this basis. That being said, this office encourages Mr. White and the Division to continue working toward an amicable resolution of this dispute -- Mr. White by framing his request more narrowly, and the Division by exhibiting a spirit of cooperation.
In light of this determination, the remaining issue presented is whether the Division properly relied upon KRS 61.878(1)(a) in denying Mr. White's request to inspect redacted versions of the "written evaluations of every member of the 2004 Firefighter recruit class." Among those records which are excluded from application of the Open Records Act absent a court order are those described at KRS 61.878(1)(a):
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In a line of decisions dating back to 1977, the Attorney General has held that a public employee has a cognizable privacy interest in records of an evaluative nature relating to him or her which is generally superior to the public's interest in disclosure of those records. 04-ORD-045; 02-ORD-197; 99-ORD-137; 99-ORD-42; 99-ORD-14; 96-ORD-275; 96-ORD-51; 94-ORD-132; 94-ORD-54; 92-ORD-1375; OAG 89-90; OAG 86-15; OAG 82-204; OAG 80-58; OAG 79-348; OAG 77-394. Only on rare occasion has the Attorney General departed from this position. In 92-ORD-1145, the Attorney General declared that the performance evaluation of a school system superintendent was subject to inspection. Our decision was premised on the notion that the public's interest in reviewing those portions of the superintendent's evaluation which have a direct bearing on the management and operation of the school system is superior to the reduced expectation of privacy which someone in a leadership position such as the superintendent might have. Id., p. 3. 9 Expressly declining to extend this reasoning to "rank and file public employees" such as the recruit class, this office observed:
We do not, in so holding, establish a rule of general application vis-a-vis performance evaluations. Nor do we depart from any opinion previously issued by this Office. [Footnote omitted]. Because the Superintendent is ultimately responsible for the management of the school system, his performance is of far greater interest to the public, and his expectation of privacy in the evaluation of that performance is correspondingly reduced. The same cannot be said of the other employees of a school system or any other public agency, since disclosure of their evaluations may spur unhealthy comparisons, breeding discord in the [workplace], and result in injury and embarrassment to the employee. We continue to ascribe to the view that an employee's right of privacy in his evaluation is superior to the public's interest in inspecting that evaluation. Our decision is limited to the facts presented in this case.
Id., p. 4.
In 92-ORD-1375, the Attorney General affirmed this holding, declaring that anonymous student evaluations of professors are exempt from public inspection pursuant to KRS 61.878(1)(a), and in 94-ORD-54, declaring that a city auditor's evaluation is exempt because she is not "'ultimately responsible for the management' of the City of Louisville." Id., p. 4. Shortly thereafter, the Attorney General again affirmed the validity of this position in concluding that the University of Louisville could properly withhold the five year review of the Chairman of the Department of Ophthalmology pursuant to KRS 61.878(1)(a) because the privacy interests of the chairman were superior to the public's interest in disclosure. 94-ORD-54. Later, this office held that the position occupied by a city manager is "more closely akin to that of a school superintendent than the positions occupied by rank and file public employees or even those high ranking employees . . . who were not 'ultimately responsible for management' of the agencies which they served[, and whose evaluations were therefore exempt] ." 00-ORD-177, p. 8. See also 96-ORD-256 (declining to extend the reasoning of 92-ORD-1145 to administrative evaluations of school district principals); 96-ORD-275 (declining to extend the adopted reasoning to the job performance evaluations of two "high ranking" city employees). Resolution of these appeals turned on a long line of precedent, and our recognition that "[i]f changes in the law are to be made, they should be made by the Court." OAG 80-54, p. 4. In summary, this office has consistently resisted efforts to extend the holding of 92-ORD-1145 to other public officers or officials, and the instant appeal presents no reason to depart from this approach. 10
In our view, members of a firefighting recruit class are properly characterized as "rank and file" public employees, and the fact that Mr. White has requested a "class of evaluations" does not alter the analysis. Since these employees do not directly control the management and operation of a public agency, namely, the Division, the public's interest in reviewing their evaluations is correspondingly reduced. As intimated by the Division, redacting any "personally identifiable" information from the evaluations would not sufficiently protect the heightened privacy interests of the cadets, particularly since the names of the cadets have already been provided to Mr. White. To the contrary, the identities of the cadets could be readily inferred even with the obviously personal information redacted given the biographical nature of information generally contained in an evaluation. In sum, both logic and precedent dictate that the question of whether the public's interest in the evaluations at issue outweighs the privacy interests of the recruits must be answered in the negative.
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.
Footnotes
Footnotes
1 On appeal, Mr. White explains that Mr. Dickman, "an employee of the Fire Division who has been recommended for discharge," is his client.
2 Although Mr. White requested to inspect a total of eight categories of documents, the record reflects that the LFUCG honored Mr. White's request as to the other six categories. Accordingly, any issues relative to those records are now moot, and our analysis focuses exclusively on the actions of the LFUCG relative to the remaining two categories.
3 Although Mr. White explains the reason for requesting the evaluations, namely, so that his client can compare his evaluation with those of his fellow cadets, so this office "may analyze this argument," neither the requester's identity nor his purpose in requesting access to the records is relevant to the analysis employed by this office in determining whether a public agency has discharged its duty under the Open Records Act. 97-ORD-187, p. 4.
4 Although Mr. Sanner further argues that the requested evaluations are "exempt as preliminary under KRS 61.878(1)(j)," in 00-ORD-177 the Attorney General concluded that the "fact that the Board's final action was publicly disclosed does not, in our view[,] moot the issue of public access to the document that formed the basis of that action." Id. p. 7. To the extent that position represented a departure from prior decisions affirming agency denials of requests for access to evaluations on the basis of KRS 61.878(1)(j), those decisions were modified. Holding that "the public is entitled to know not only what action is taken, but why that action was taken," this office observed:
While, as noted above, we continue to ascribe to the view that the overwhelming majority of public employee evaluations enjoy the protection of KRS 61.878(1)(a), we do not believe that on those "rarest of occasions," 99-ORD-137, p. 4, when the exception does not apply, the public is only entitled to review records reflecting what final action was taken as a result of the evaluation.
Id.
5 KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
6 Among those records already provided to Mr. White is the "complete personnel file" of Mr. Dickman.
7 Reaffirming the validity of this principle, the Attorney General subsequently held:
An open records question should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F. Supp. 778, 792 (D.C.D. Rhode Island 1978). Instead, the requester should submit a "brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. [The] requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records he wishes to access. This, as we have so often noted, is a precondition to inspection. See e.g., 92-ORD-1261, and authorities cited therein.
99-ORD-140, p. 6; 01-ORD-51.
8 KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing or criminal or administrative investigations by an agency.
9 See 99-ORD-137, pp. 6-7, for a discussion of the privacy analysis developed by the Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), as well as the standard articulated by the Court for determining whether a record may properly be excluded from inspection pursuant to KRS 61.878(1)(a), and the standard as refined by the Kentucky Court of Appeals in Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994). Each of the cited decisions is premised upon this analysis.
10 See OAG 79-348 (teacher); OAG 80-58 (policeman); OAG 82-204 (university professor); OAG 86-15 (teacher); OAG 89-90 (teacher); OAG 91-62 (branch manager); 93-ORD-17 (university professors); 99-ORD-42 (city employees).