Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Breckinridge County Board of Education committed a procedural violation of the Open Records Act in refusing to treat an open records request that was not signed as received and dated by either Superintendent Evelyn Neely or Assistant Superintendent Richard Butler as a proper request, and a substantive violation of the Act in requiring a degree of specificity in the framing of an open records request that is not contemplated by the statute. However, in the absence of specific facts indicative of a public interest in disclosure of the requested performance evaluation that outweighs the privacy interest of the individual in his evaluation, we affirm the Board's denial of this portion of the request.
On the issue of procedural noncompliance, we find that Baker v. Jones, 199 S.W.3d 749 (Ky. App. 2006), is controlling. There the Kentucky Court of Appeals held that "delivery to the office of the [agency] was sufficient to trigger [the agency's] obligation" and that to require personal delivery to a public official "would be tantamount to encouraging our government officers to 'bury their heads in the sand' to public matters with which they are charged." The Open Records Act does not authorize the imposition of requirements for submission of a request over and above those requirements found at KRS 61.872(2). 1 To the extent that the Board attempted to impose additional requirements, its actions constituted a violation of the Act.
On the issue of substantive noncompliance, as it related to the purported lack of specificity with which The Herald-News' request was framed, we find that 03-ORD-012, a copy of which is attached hereto and incorporated by reference, is controlling. In that decision, the Attorney General concluded that a request for a personnel file of a named school employee was sufficiently specific to enable the school system's custodian of record to identify and retrieve the records and therefore satisfied the requirements of KRS 61.872(2). Here, as in 03-ORD-012, we believe it is incumbent on the Board to disclose the nonexcepted records in the requested personnel file, and identify, in writing, any responsive records withheld, citing the statutes authorizing the withholding and briefly explaining how those statutes apply to the records withheld.
Nevertheless, we affirm the Breckinridge County Board of Education's denial of The Herald-News' request for performance evaluations of the named employee. Although the employee holds the position of principal in an elementary school, that fact standing alone is not dispositive. We agree that Cape Publications, Inc. v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006) represents the controlling precedent on this issue, but disagree that that case mandates disclosure on the limited facts presented. The record on appeal is devoid of any proof that the subject principal committed a crime or engaged in misconduct resulting in forfeiture of his privacy interests, or that he supervised a person who committed a crime or engaged in misconduct, thus elevating the public's right to scrutinize how he was evaluated in his supervisory role. No facts are presented that would support a claim of a superior public interest in the principal's evaluation that would override his long-recognized privacy interest in that record. Accord, 07-ORD-123. We find no error in the Board's decision to withhold this particular record(s).
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.
Distributed to:
David W. Hayes, Editor
Evelyn Neely, SuperintendentBreckinridge County Board of Education86 Airport RoadHardinsburg, KY 40143
David Wilson
Footnotes
Footnotes
1 KRS 61.872(2) thus provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.