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 Department of Corrections properly relied upon KRS 61.878(1)(a) in denying the request of Jo Ann Searcy to inspect personnel documents relating to Steven Adwell, Deputy Warden of Programs at Luther Luckett Correctional Complex, namely, the "2004 Performance Evaluation Plan -- signed by Mr. Adwell and his next line supervisor. " Because the position of the DOC is supported by governing precedent, this question must be answered in the affirmative. To the extent that Ms. Searcy is seeking access to the job description of Mr. Adwell as opposed to the confidential information contained in a completed performance evaluation, it is equally well-settled that Ms. Searcy is entitled to inspect a redacted copy of any existing record which is responsive to her request. Although the DOC has not expressly relied upon KRS 197.025(1), the DOC may properly withhold the requested record or portions thereof on this basis assuming the DOC first satisfies its statutory burden of proof by explaining how this exception applies to the record withheld in writing as required by KRS 61.880(1). 1
In a timely written response, Cynthia Hall, Personnel Administrator, denied Ms. Searcy's request on the following basis:
Employee evaluations are exempt from public disclosure pursuant to KRS 61.878(1)(a). The [Attorney] General has held in a line of decisions dating back to 1977, 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.
Attached to Ms. Hall's response is the following list of decisions issued by the Attorney General which further support her position:
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; 04-ORD-045.
By letter dated February 3, 2005, Ms. Searcy initiated this appeal from the DOC's denial of her request. In Ms. Searcy's view, any confidential or personal information can be redacted from the requested performance plan per KRS 61.878(4), thereby avoiding the disclosure of information which would constitute an unwarranted invasion of personal privacy. To clarify, Ms. Searcy emphasizes that she is not requesting information such as Mr. Adwell's social security number, employee number, or "ratings of his performance." (Emphasis added). Rather, Ms. Searcy is "merely asking" for the 2004 Performance Plan that Mr. Adwell signed which describes the "duties & responsibilities" for which he is held accountable, and "expectations relating" to job tasks, adaptability/initiative, communication/teamwork, and self-management.
Upon receiving notification of Ms. Searcy's appeal from this office, Emily Dennis, DOC Staff Attorney, responded on behalf of the DOC. According to the DOC, Ms. Hall properly denied Ms. Searcy's request on the basis of KRS 61.878(1)(a). As correctly observed by Ms. Dennis: "Section I of a state government employee's Annual Performance Evaluation is entitled Performance Planning." Elaborating upon the DOC's position, Ms. Dennis argues:
Your office has long recognized that inspection of documents of an evaluative nature may be denied under KRS 61.878(1)(a) and KRS 61.878(1)(i). In so doing, your office has noted that an evaluation is a matter of opinion. Additionally, the Attorney General has recognized that " . . . the privacy interests protected by KRS 61.878(1)(a) are as much those of the evaluator as those of the person being evaluated, since the evaluator generally makes his evaluation with the understanding that it will be kept confidential. " See 94-ORD-108. It is impossible to redact the evaluation to eliminate the privacy concerns of the employee and supervisor in the contents of the evaluation. A Deputy Warden at a correctional institution is not comparable to a school system superintendent, thus, the Attorney General's position in 92-ORD-1145 should not be applied to make the deputy warden's performance evaluation subject to disclosure. While not expressly relied upon for denial of the request, there are inherent security concerns in a correctional setting for which access to correctional employee[s'] performance evaluations should be denied.
In short, Ms. Dennis's analysis of KRS 61.878(1)(a) is correct to the extent applicable. Most recently, the Attorney General reaffirmed the validity of this position in 05-ORD-014, a copy of which is attached hereto and incorporated by reference, with respect to the application of KRS 61.878(1)(a) to performance evaluations of public employees. However, the analysis does not end there.
On appeal, Ms. Searcy clarifies that her request is not for the subjective "ratings of [Mr. Adwell's] performance," which are exempt, but the overall performance plan which describes his duties/responsibilities, as well as the expectations of the DOC relative to the specified categories. As clarified, Ms. Searcy's request seems to be for Mr. Adwell's job description rather than the inherently sensitive content of his annual performance evaluation. The "Annual Employee Performance Evaluation" prepared by the Personnel Cabinet which is utilized by state agencies such as the DOC consists of three sections, the first of which is entitled "Performance Planning." Both Section II, entitled "Interim Meeting Documentation," and Section III, entitled "Performance Evaluation, " contain subjective information of a strictly evaluative nature, including comments by the evaluator and, in some instances, the employee, as well as the employee's rating by category and "Overall Performance Evaluation, " respectively. In other words, both sections contain precisely the type of opinions and personal information which KRS 61.878(1)(a) was designed to protect. However, it is Section I of the evaluation, outlining the duties and expectations for the employee, which appears to be the focus of Ms. Searcy's request. 2 In our view, this section is roughly equivalent to the job description for the state employee being evaluated which is clearly subject to inspection once identifying information such as Mr. Adwell's social security number has been redacted. See 00-ORD-97, p. 6. 3
Unless the requested record (or responsive portion thereof) falls within one or more of the exceptions codified at KRS 61.878(1)(a) through (l), the DOC must disclose a redacted copy of the record to Ms. Searcy in a manner consistent with KRS 61.880(1). Although Section I is not exempt pursuant to KRS 61.878(1)(a) with the noted exceptions, Section I arguably falls within the parameters of KRS 197.025(1), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are among those records excluded from application of the Open Records Act. Noticeably absent from the DOC's initial response is any reference to KRS 197.025(1) or explanation of how this exception applies to the record withheld. However, it is KRS 197.025(1) upon which the DOC implicitly relies as an additional basis for denial in arguing that security concerns inherent in a correctional setting justify withholding Mr. Adwell's "Performance Plan" in its entirety. Although the DOC has not met its statutory burden of proof relative to this provision, it "is the substance of the material sought to be discovered" which must determine the outcome of this appeal. Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 859 (1996). See 04-ORD-208.
KRS 197.025(1) provides:
KRS 61.884 and 61.878 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
By enacting KRS 197.025(1), "the legislature has created a mechanism for prohibiting inmate access to otherwise nonexempt public records where the disclosure of those records is deemed to constitute a threat to security." 96-ORD-209, p. 3; 04-ORD-106; 04-ORD-017; 03-ORD-190. In construing the expansive language of this provision, the Attorney General has recognized that KRS 197.025(1) "vests the commissioner [or his designee] with broad, although not unfettered discretion to deny inmates access to records." 96-ORD-179, p. 3; 04-ORD-106; 04-ORD-017; 03-ORD-190. Application of KRS 197.025(1) "is not limited to inmate records, but extends to 'any records' the disclosure of which is deemed to constitute a threat to security." 96-ORD-204, p. 2; 04-ORD-106; 04-ORD-017; 03-ORD-190.
Since its enactment in 1990, this office has upheld denials by correctional facilities of inmate requests and requests from members of the public based on KRS 197.025(1) for conflict sheets (OAG 91-136); psychological evaluations of inmates (OAG 92-25, 92-ORD-1314); facility canteen records (94-ORD-40, 96-ORD-209, 97-ORD-25); personnel records of correctional officers (96-ORD-179, 96-ORD-182, 96-ORD-204); facility deficiency reports (96-ORD-243); records confirming that inmates submitted to HIV testing (96-ORD-243); inmate honor dorm waiting lists (97-ORD-33); records documenting procedures employed by facilities in performing an execution (97-ORD-151); and incident reports (03-ORD-190). See 04-ORD-017. Having consistently recognized that KRS 197.025(1) vests the commissioner or his designee with broad discretion in making this determination, this office has declined to substitute its judgment for that of correctional facilities or the DOC. Accordingly, the DOC may properly withhold the requested personnel record on the basis of KRS 197.025(1) assuming the DOC satisfies its burden of proof by establishing that disclosure would constitute a threat to the security of any inmate, LLCC staff, LLCC, or any other person, and promptly notifies Ms. Searcy in writing of its decision. To hold otherwise would contravene the purpose for which KRS 197.025(1) was enacted.
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 In relevant part,KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
2 It is noteworthy that the following instruction to the evaluator appears under the heading of Job Tasks: "Please refer to the Position Description (PD) to help determine the job tasks to be rated."
3 Likewise, the number of points allotted to each category of "Job Tasks," located in the column entitled "Duties," and the final scores categorized as "Performance Appraisal Levels," constitute information of an evaluative nature which may be redacted.