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 Audubon Area Community Services, Inc., properly relied on KRS 61.878(1)(a) in denying John Yarbrough's May 29, 2007, and June 18, 2007, requests for all nonexempt records in AACS employee Tammy Cumens' personnel file including, but not limited to, "records showing programs and classes taken," "all other records such as employment applications . . . that might show her qualifications for her job," "resume, . . . educational background, continuing education, complaints, reprimands, disciplinary action, hire dates, salary, and work experience. " 1 For the reasons that follow, we find that AACS's reliance on KRS 61.878(1)(a) as the basis for denying Mr. Yarbrough's request was misplaced. 2
By letter dated June 14, 2007, 3 AACS Human Resources Generalist Barbara Feldpausch denied Mr. Yarbrough's request on the basis that the records he sought "pertain to an employee's education retained in her personnel file which is confidential and of a personal nature and therefore . . . exempt from the Open Records regulation [sic]." In support, AACS invoked KRS 61.878(1)(a). Shortly thereafter, Mr. Yarbrough petitioned AACS to reconsider its position, based on the overwhelming weight of legal authority, and clarified his May 29 request by identifying the specific records in Ms. Cumens' personnel file which he wished to inspect. That request was tersely denied by letter dated June 25, 2007, and signed by AACS Executive Director Ronald Logsdon. This appeal followed.
In supplemental correspondence directed to this office following commencement of this appeal, AACS amplified on its position that "Ms. Cumens' personnel file is exempt from disclosure under KRS 61.878(1)(a) . . . ." By way of background, AACS explained that Ms. Cumens sat on the jury that convicted Mr. Yarbrough in his criminal trial, and that, since being released from prison, "Mr. Yarbrough has unexpectedly showed up at Ms. Cumens' home and attempted to make contact with her." Based on these facts, it was AACS's position that Mr. Yarbrough "is now seeking to invade her privacy further through his open records request to her employer," and that the request "is nothing more than a repeated and targeted attempt to harass Ms. Cumens."
Continuing, AACS elaborated on its position that the requested records are "unquestionably of a personal nature . . .[,] covering every conceivable type of information that would be contained in Ms. Cumens' personnel file. " Characterizing the records sought by Mr. Yarbrough as "highly private," AACS asserted that "it is inappropriate to subject Ms. Cumens to the consequences of publication of her private information to anyone, much less to this individual that she is, in part responsible for sending to jail and who has already engaged in aggressive acts toward her that she reasonably considers threatening in nature." 4 In support, AACS cited Zink v. Com., Depart. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 828 (Ky. 1994), recognizing that information such as marital status, number of dependents, wage rate, social security number, home address and telephone number are generally accepted by society as details in which an individual has an expectation of privacy, and Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006), recognizing a privacy interest in public employee performance evaluations.
AACS then turned to the second part of the two part analysis, which turns on a determination of whether disclosure of personal information would constitute a clearly unwarranted invasion of personal privacy, concluding that disclosure of the records sought by Mr. Yarbrough would, in fact, constitute a clearly unwarranted invasion of Ms. Cumens' privacy. AACS observed:
In applying the balancing test to the facts at hand, it is evident that Mr. Yarbrough's request does not serve the principle purpose behind the Open Records Act in that his request does not provide any significant insight into how AACS is functioning as a community action agency. This is because Ms. Cumens is an "ordinary employee." See Cape, 191 S.W.3d at 18. For example, the information contained in Ms. Cumens' personnel file, even the limited information about her education and qualifications provides little or no meaningful information about AACS's own conduct or functioning. Ms. Cumens is (1) not a long-term AACS employee, (2) not in management or other position of authority, (3) not responsible for significant amounts of money or how that much is spent, and (4) not assigned significant decision making authority beyond the classroom in which she works as a teacher associate. The position she holds with AACS does not require (by law or otherwise) an extensive educational background, experience or certification process. In short, the records that Mr. Yarbrough seeks to obtain do little, if anything, to shed light to how AACS is carrying out its functions as a community action agency or AACS's own conduct. Just as in Zink, the relevant public interest supporting disclosure is "nominal at best." Id. (emphasis added.)
On this basis, AACS concluded, the records contained in Ms. Cumens' personnel file are exempt from disclosure. Respectfully, we disagree that the balance here tips in favor of nondisclosure.
We begin with a principle of law that has become axiomatic in the realm of open records analysis and that is articulated in both statute and case law: "All public records shall be open for inspection to any person" and "Any person shall have the right to inspect public records. " KRS 61.872(1) and (2) (emphasis added). In construing these provisions, Kentucky's courts have declared that "the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Zink at 828.
Implementing the clearly expressed legislative intent, this office has long disapproved disparate treatment of open records applicants. In an early opinion, the Attorney General recognized that access may be denied "according to the nature of the records, and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. " OAG 82-233, p. 3; OAG 89-76; OAG 92-30; 01-ORD-8. As noted, this position was confirmed by the Kentucky Court of Appeals in Zink v. Commonwealth, above, wherein the court opined:
Our analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next.
Id.; accord, 05-ORD-025; 05-ORD-152. No provision of the Open Records Act may therefore be construed to "authorize[] public agencies to inquire into a requester's motive in seeking access to public records, or to consider those motives in determining whether the records should be released." 01-ORD-8, p. 5. 5 Here, as in all other open records disputes, it is the nature of the requested records that is determinative.
Contrary to AACS assertions, Mr. Yarbrough has not requested "every conceivable type of information that would be contained in Ms. Cumens' personnel file, " but has expressly confined his request to nonexempt portions of her personnel file 6 including resume, employment application, educational background, continuing education, complaints, reprimands, disciplinary actions, hire date, salary, work experience. It is, in our view, erroneous to characterize such documentation, in its entirety, as "highly private." Disclosure will advance "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," 00-ORD-137, p. 2, 3, however minimal those educational and experience requirements may be, and thus facilitate, through inspection of public records, the public's ability to insure that agencies are properly executing their statutory functions and public servants are indeed serving the public. Board of Examiners v. Courier-Journal and Louisville Times, 826 S.W.2d 324 (Ky. 1992); accord 02-ORD-140; 03-ORD-141.
In defining the public's right of access to public employee personnel files, the Attorney General has recognized that KRS 61.878(1)(a) "applies only to matters entirely unrelated to the performance of public employment. " OAG 78-133, p. 3. "The privacy rights of the public employee extend only to matters which are not related to the performance of his work." OAG 80-43, p. 3. In a later opinion, we summarized our views as follows, "[a] personnel folder of a public employee by its very nature is a mixture of documents which are subject to inspection and which may be excluded from . . . inspection. OAG 88-53, p. 3. Conversely, the Attorney General has long recognized that records relating to the public employee's public duties, and his qualifications for the position he holds, are subject to public inspection inasmuch as the public's interest in disclosure outweighs any privacy interest that might be implicated. OAG 76-717; OAG 87-37; 94-ORD-36; 97-ORD-66; 00-ORD-126. Pursuant to KRS 61.878(4) , it is incumbent on AACS to disclose the nonexcepted records, and identify, in writing, any responsive records withheld, cite the statute(s) authorizing the withholding, and briefly explain to Mr. Yarbrough how the statute applies to the record(s) withheld.
Fortunately, there is a great deal of existing authority to guide AACS in making this determination. In 97-ORD-66, for example, this office opined:
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. As previously recognized by the Attorney General, "these opinions are premised on the idea that a person does not typically work, or attend school, in secret, and[,] therefore[,] the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment. " 93-ORD-32, p. 3; 00-ORD-090. We urge AACS to review these decisions in evaluating, and responding to, Mr. Yarbrough's requests.
In closing, we remind AACS that Mr. Yarbrough stands in the same shoes as any other open records requester, whatever his suspected motive in requesting records relating to Ms. Cumens, but that she is not, as intimated by the Kentucky Supreme Court in Braden, above, without redress should he engage in improper conduct. We also remind her that should AACS elect not to appeal this decision to the appropriate circuit court, as is its right under KRS 61.880(5)(a), she may assert a claim for nondisclosure in the circuit court under authority of KRS 61.882 and Beckham v. Board of Education, 873 S.W.2d 575 (Ky. 1994).
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 Mr. Yarbrough's May 29 typed request included a handwritten request for "any 'guidelines' that may be printed out that cover Open Records Requests.'" This portion of his request apparently went entirely unanswered in violation of KRS 61.880(1), 61.876(1), and KRS 61.872(1) and (3)(b).
2 Much of AACS's supplemental defense is postulated on its ambiguous status as an entity that does not derive at least 25% of its funding from state or local sources, but that is a community action agency organized pursuant to KRS 273.410 et seq. to provide among other things, head start programs in Kentucky, and that "is included in the definition of a 'district' as set forth at KRS 65.060." Acknowledging the existence of "persuasive authority suggesting that its community action agency status, per se, makes it subject to Kentucky Open Records Law (citations omitted), AACS nevertheless notes that pursuant to 922 KAR 6:010 "[if] the community action agency, or any other program or subdivision of the community action agency, meets the definition of a public agency as defined in KRS 61.870(1) then the communication action agency, the program or the subdivision of the community action agency meeting the definition shall comply with the open records law, KRS 61.870-61.884."
AACS "operates as if it is required to comply with the Kentucky Open Records Act," "presume[s] the Attorney General's Office has jurisdiction over this appeal, " but categorically asserts that "AACS's employees are not public employees and, as such, they do not have any expectation that their personnel files are open to public disclosure. " Absent direct legal authority supporting this proposition, we cannot agree.
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3 Clearly, AACS's written response to Mr. Yarbrough's request exceeded the three business day statutory deadline in violation of KRS 61.880(1).
4 On August 8, 2007, Mr. Yarbrough notified this office that he had been arrested for stalking, providing this office with a newspaper article from The Madisonville Messenger dealing with his arrest. In his letter, he posed a number of questions concerning that article, pointedly asking if he has "a right to expect some protection or privacy when making open records requests," and if it isn't "improper to notify the person whose records are being requested . . ." The answer to both of these questions is "no." Mr. Yarbrough is not entitled to privacy in the submission of open records requests, see, e.g., 92-ORD-1440, and it is by no means improper for a public agency to notify an individual affected by disclosure of public records that a request has been made for records relating to him or her. Beckham v. Board of Education, 873 S.W.2d 575 (Ky. 1994).
5 Mr. Cumens is not without recourse should Mr. Yarbrough engage inimproper conduct. In Cape Publications v. Braden, 39 S.W.3d 825 (Ky. 2001), the Kentucky Supreme Court recognized:
There is nothing to prevent former jurors from reporting actual harassment or intimidation to police authorities for appropriate protection or other remedy as may be required. A former juror can also pursue a private civil remedy if actual harassment or intimidation arises.
Braden at 828.
6 In 03-ORD-012, this office determined that a request for a complete personnel file was sufficiently specific to trigger the agency's duty to locate, retrieve, review, and produce for inspection all nonexempt portions.