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 Jefferson County Public Schools violated the Open Records Act in the disposition of Karen Straub's requests 1 for records relating to district employee Geneva Price. It is Ms. Straub's belief that Ms. Price serves as director of the substitute teachers center, although JCPS has not confirmed this. Ms. Straub first requested access to "all personnel records . . . [and] work records since [Ms. Price] has been employed with [JCPS] . . . ." She next requested access to "any complaints about [Ms. Price] from teachers, students, parents, office staff, substitute teachers, JCTA, and other school employees," Ms. Price's evaluations, records relating to "lawsuits filed against [Ms. Price]," requests for transfer to the position of director of the substitute teachers center as an alternative to demotion, records relating to demotions and/or temporary assignment to the board, and "information on 'red lined salary.'" Having considered the record on appeal, we find that JCPS's disposition of Ms. Straub's request was only partially consistent with the Open Records Act.
JCPS Public Information Officer Lauren E. Roberts responded to Ms. Straub's first request on August 16, 2006, advising her that "without a signed release from Ms. Price," 2 JCPS could only provide her with "limited records." Ms. Roberts explained that JCPS must withhold Ms. Price's employee evaluations, per KRS 61.878(1)(a), and letters of reference, per KRS 61.878(1)(i). JCPS cited no statutory basis for its decision to withhold Ms. Price's medical records and "information such as [her] home address, social security number, date of birth, telephone number, and race/gender code." Continuing Ms. Roberts observed:
KRS 61.872(2) requires that requests to inspect public records specifically describe the records to be inspected. If there are additional documents that you would like to inspect, please advise us of the specific records that you seek.
JCPS provided Ms. Straub with seventeen records, copies of which were appended to her letter of appeal, consisting of notifications of classified employment and notifications of change.
Ms. Roberts responded to Ms. Straub's second request on August 29, 2006, denying the existence of records responsive to that request. Although she was not statutorily obligated to do so, Ms. Roberts provided Ms. Straub with a document responsive to her request for a definition of the term "redline." 3 Dissatisfied with these responses, Ms. Straub initiated this open records appeal several months later, questioning JCPS's failure to furnish her with any additional responsive records. While it is unclear whether additional nonexempt records reside in Ms. Price's personnel file, we believe that JCPS has not yet fully discharged its obligations under the Open Records Act.
To begin, we find that JCPS's August 16 response to Ms. Straub's request was procedurally deficient. KRS 61.880(1) establishes procedural guidelines for agency response to an open records request, providing as follows:
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 KRS 61.880(1), 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 detailed and particular information in response to a request for documents . . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act - much less amount[] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-181; 05-ORD-150.
By its express terms, KRS 61.880(1) requires a public agency to identify the exception upon which it relies in withholding public records, and explain how the exception applies to the records withheld. JCPS failed to discharge this statutory duty in denying Ms. Straub access to Ms. Price's medical records and personal identifiers such as social security number, date of birth, gender, and race. No doubt, JCPS is well aware of our longstanding position that the requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 02-ORD-187; 04-ORD-114; 07-ORD-014. We urge JCPS to strictly adhere to these requirements in the disposition of future requests.
Turning to the substantive issues in this appeal, we find no error in JCPS's decision to withhold Ms. Price's evaluations under authority of KRS 61.878(1)(a) as construed in 92-ORD-1145, 99-ORD-128; 04-ORD-045, and 06-ORD-001; 4 her letters of reference under authority of KRS 61.878(1)(i) as construed in OAG 91-48 and 05-ORD-037; and her medical records and personal identifiers on the basis of KRS 61.878(1)(a) as construed in 03-ORD-023 and 06-ORD-081, respectively. In addition, we find no error in its denial of the records identified in Ms. Straub's second request based on their nonexistence. It is our decision that 07-ORD-085, a copy of which is attached hereto and incorporated by reference, is dispositive of this issue. Nevertheless, in light of 03-ORD-012, we are troubled by JCPS's insistence that Ms. Straub specifically identify the records in Ms. Price's personnel file that she wished to inspect.
In 03-ORD-012, this office determined a request for a complete personnel file was sufficiently specific, and an agency was obligated to locate and review the file and disclose all nonexempt records in the file to the requester. A copy of that decision is attached hereto and incorporated by reference. At page 7 of 03-ORD-012, this office observed:
[T]he Attorney General has consistently held that as a precondition to inspection, a requesting party must identify the records to be inspected with sufficient specificity to enable the agency's custodian of records to identify and retrieve the records. Thus, "where the records sought are of an identified, limited class, the requester satisfied this condition." 92-ORD-1261, p. 3. The records to which [the applicant] requested access consisted of a limited class, to wit personnel records, and were identified by name . . . . It cannot be persuasively argued that the [agency's] custodian could not identify and retrieve these records based on this description. This being the case, we find that it was incumbent on the [agency] to "separate the excepted and made the nonexcepted material available for examination." KRS 61.878(4). To suggest that discharge of this statutory duty was more difficult because the records sought were located in employees' personnel files, as opposed to the wide range of files and possible file locations implicated in [other requests], defies logic. We therefore find that a request for access to a personnel file requires no greater degree of specificity than any other open records requests, and that the agency must therefore "determine what is and is not subject to Open Records." Pursuant to KRS 61.878(4), the agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, site the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld.
Accord, 04-ORD-141; 05-ORD-073; 06-ORD-010. Extending the reasoning of this decision to the instant appeal, we find that it was, and is, incumbent on JCPS to review Ms. Price's personnel file and to release to Ms. Straub any remaining nonexcepted records. If additional excepted records reside in the file, it is incumbent on JCPS to identify those records in writing, to cite the exceptions authorizing nondisclosure of those records, and to briefly explain how the exceptions apply to the records withheld. Until it has done so, JCPS's obligations under the Open Records Act will not be fully discharged.
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.
Karen Straub5217 Dahl Rd.Louisville, KY 40213
Lauren E. RobertsPublic Information OfficerJefferson County Public SchoolsP.O. Box 34020Louisville, KY 40232-4020
Rosemary Miller, Legal CounselJefferson County Public Schools3332 Newburg RoadLouisville, KY 40218
Footnotes
Footnotes
1 Both of Ms. Straub'shandwritten requests contain two dates:8/11/068/24/068/16/068/29/06
These dates are also handwritten although it is unclear who placed them on the requests. The requests otherwise contain no dates.
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2 Clearly, the Open Records Act does not require a "signed release" from the individual whose records are requested as a precondition to the release of records. We assume that by this statement JCPS intended to suggest that with a signed release it could release all records in Ms. Price's personnel file, including exempt records.
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3 Because this was an improperly framed request for information, as opposed to a properly framed request for records, JCPS was not required to provide Ms. Straub with an answer to her inquiry. We commend JCPS for its willingness to do so.
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4 We note that in Cape Publications v. City of Louisville, Ky. App., 191 S.W.3d 10, 12 (2006), the Kentucky Court of Appeals rejected "[a] bright-line rule completely permitting or completely excluding from public disclosure employees' performance evaluations," and determined that the correct approach to the issue of access is a case by case approach.
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