Request By:
Dan Duffy
901 Lane Allen Road
Lexington, KY 40504Margaret Kannensohn
Fayette County Attorney
163 W. Short Street, Suite 700
Lexington, KY 40507
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Fayette County Attorney violated the Open Records Act in the disposition of Dan Duffy's October 31, 2005, request for records "pertain[ing] to Dan Duffy and Louise Williams and to the policies and procedures of the Fayette County Attorney['s] Office." Specifically, Mr. Duffy requested copies of:
1. All memos, CDs, tapes, files, records, documents or other media to include Wayne Cook's private office at 205 Upper and in his private home or another any other location he may have documentation.
2. [A]ll policy documents or files.
3. Policy relating to county attorney's recommending private attorney.
4. Policy relating to county attorney's involving themselves in civil matters while in their capacity as public attorney.
5. Wayne Cook's relationship with Dennis A. Bradley.
6. Any communication documents between Wayne Cook and Dennis A. Bradley.
7. Wayne Cook's background.
8. Wayne Cook's training.
9. All complaints filed against Wayne Cook.
10. His mental condition.
11. His duty assignment.
12. His caseload.
13. His annual performance ratings.
14. Policy and procedure for assistance to petitioner as required by KRS 387.
15. Policy and procedure for review and settlement of fiduciary accounts.
For the reasons that follow, we find that the County Attorney's disposition of Mr. Duffy's request was only partially consistent with the requirements of the Act.
In a letter dated November 2, the Fayette County Attorney responded to Mr. Duffy's request as follows:
A. Items 1, 5, and 6 are private, not public records, which this office does not have access to, therefore your request is denied.
B. Items 7, 8, 9, 10, 11, 12, and 13 are personnel records which are private and therefore your request is denied.
C. Items 3 and 4 -- no specific policy exists, conflicts of interest would be determined in accordance with provisions and rules of the Kentucky Bar Association.
D. Items 14 and 15 -- no specific policy exists since the duties of the County Attorney's Office are specified by Statute.
E. Item 2 -- This office maintains a policy and procedures manual regarding its employees which you are welcome to review upon making an appointment for the date and time of your inspection.
Dissatisfied with this response, Mr. Duffy initiated the instant appeal on November 14, 2005. He acknowledged that the County Attorney agreed to afford him access to the policy and procedure manual, but questioned the failure of her office to schedule a timely appointment for inspection as well as the decision to otherwise deny his request.
In supplemental correspondence directed to this office following commencement of Mr. Duffy's appeal, the County Attorney provided us with a copy of an order and opinion of the Fayette District Court, Probate and Mental Health Divisions, characterizing the order and opinion as "[t]he best illustration of Dan Duffy," and asserting that "[h]is open records efforts are a continuation of his pattern of harassment of [her] office and staff members." We affirm, only in part, the Fayette County Attorney's disposition of Mr. Duffy's request. Further, we find that nothing in the record on appeal supports a claim of harassment within the meaning of KRS 61.872(6).
We begin by noting certain procedural irregularities in the County Attorney's response to Mr. Duffy's request. In resisting disclosure of records identified in items seven through thirteen of that request, the County Attorney asserted that the requested records "are personnel records which are private . . . ." The County Attorney did not cite the specific exception to the Open Records Act that extends protection to "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, " to wit, KRS 61.878(1)(a). Nor did the County Attorney briefly explain the application of the referenced exception to the records withheld.
KRS 61.880(1) establishes procedural guidelines for agency response to an open records request. That statute 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). A "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Edmondson, supra, at 858; 01-ORD-183, pp. 2, 3; 04-ORD-183. To the extent that the County Attorney failed to cite the relevant exception and explain the exception's application to the records withheld, her response was procedurally deficient. The Attorney General has repeatedly recognized that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5. We urge the Fayette County Attorney to review the cited provision to insure that future responses conform to the Open Records Act. 1
Turning to the substantive issues in this appeal, we find that the County Attorney erred in characterizing records relating to Assistant Fayette County Attorney Wayne Cook as "personnel records which are private . . . ." With regard to the issue of public access to public employee personnel records, we are on familiar ground. On this issue, the Attorney General has long recognized:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's resume reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717, OAG 87-37, OAG 91-41, OAG 91-48, OAG 92-59, 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example OAG 78-133; OAG 91-20, OAG 92-34, 95-ORD-123; 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records. 94-ORD-108.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. See for example, OAG 79-275; OAG 87-37; OAG 90-60; OAG 91-81; 94-ORD-91. Such matters are unrelated to the performance of public employment. Employee evaluations have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90.
97-ORD-66, p. 5, cited in 03-ORD-012, p. 8. This line of decisions is premised on the notion that the public's interest in insuring that public agencies discharge their duty to hire individuals who qualify by virtue of education and experience for the positions they hold, and that the individuals who are hired properly discharge their public duties, is superior to any articulable privacy interest those employees may have in their records.
Board of Examiners of Psychologists v. Courier Journal, Ky., 826 S.W.2d 324 (1992);
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994).
Applying this analysis to records relating to Assistant Fayette County Attorney Wayne Cook, we find that the County Attorney is obligated to disclose any records already maintained by her office which disclose his background and qualifications, his training and education, disciplinary actions taken against him (including the complaints that resulted in disciplinary action or the decision to take no action), his duties and job description, and his caseload. Consistent with an equally long line of decisions of this office, the County Attorney is not obligated to disclose his performance ratings or evaluations, 2 or records reflecting his mental condition or otherwise relating to his health. Nor is she required to create records not already in existence to satisfy one or more of Mr. Duffy's requests. We urge the County Attorney to make immediate arrangements for Mr. Duffy to inspect these nonexempt records along with the policy and procedures manual for her office if he has not already been afforded an opportunity to inspect the manual.
We find no error in the County Attorney's denial of Mr. Duffy's request for records maintained in Mr. Cook's private law office and his home which are, perforce, unrelated to his public duties. See., e.g., 03-ORD-002. Nor do we find any error in her denial of his request for nonexistent records. This office has long recognized that, in the absence of proof supporting a claim that responsive records must exist within a public agency, the agency satisfies its obligations by affirmatively notifying the requester that no responsive records exist. See., e.g., 04-ORD-128. The Fayette County Attorney discharged her duty under the Open Records Act by notifying Mr. Duffy that records responsive to requests 3, 4, 14, and 15 do not exist.
In closing, we note that the County Attorney indirectly references KRS 61.872(6) in her disposition of Mr. Duffy's request. That statute 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.
Given the clear and convincing standard of evidence that this provision contains, it is incumbent on the public agency invoking it to build a factual case supporting invocation. The record before us is devoid of specific evidence of an unreasonable burden or of an intent to disrupt the essential functions of the County Attorney's Office, and we therefore cannot affirm her denial of Mr. Duffy's request on this basis. This is not to say that the County Attorney cannot build a successful case. We have enclosed a copy of this office's decision in 05-ORD-067 for purposes of instructing the parties on the proper application of KRS 61.872(6).
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.
Footnotes
Footnotes
1 We note that although the County Attorney referenced a pattern of harassment relative to Mr. Duffy's repeated requests, she did not invoke KRS 61.872(6) or attempt to demonstrate by clear and convincing evidence that his request "places an unreasonable burden [on her office] in producing public records" or is "intended to disrupt other essential functions of" her office as required by that statute. To this extent, her response was, again, deficient.
2 See, e.g., OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90.