Request By:
Roxann J. Curts
Harry S. Craycroft
Margaret Matney
Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the Meade County Judge Executive (County Judge Executive) properly relied upon KRS 61.878(1)(a) in denying the request of The Meade County Messenger , General Manager, Roxann J. Curts' May 7, 2008, request for "a list of applicants for the planning and zoning director's position, the planning and zoning secretarial position, the animal control position and the substitute custodian position as submitted to your office at the close of business on May 6, 2008."
By letter dated May, 9, 2008, Harry S. Craycroft, Meade County Judge Executive, denied the request, under authority of KRS 61.878(1)(a), explaining that the public disclosure of the information requested would constitute a clearly unwarranted invasion of the personal privacy to the people that have applied for these positions.
Shortly thereafter, Ms. Curts initiated the instant appeal asking this office to determine whether the County Judge Executive had violated the Open Records Act in denying the request for a list of the names of the applicants.
After receipt of notification of the appeal, Margaret L. Matney, Meade County Attorney, provided this office with a response to the issues raised in the appeal. In her response, she advised in relevant part:
Pursuant to Kentucky Board of Examiners v. Courier-Journal, Ky., 826 S.W.2d 327 (1992), the privacy interest in nondisclosure is balanced against the public's right to be informed. Also, the Attorney General's Opinion, OAG 90-113, states that applications and resumes from unsuccessful applicants for state employment are excepted from disclosure as unwarranted invasions of personal privacy. These positions are currently vacant. Meade County is a small rural county where everyone knows everyone. Some people have applied for these positions not wanting their current employers to know that they are looking for another job. Jobs are scarce in Meade County and applicants do not want to risk losing a current job by publicly applying for another one. Disclosure of this information would cause a clearly unwarranted invasion of personal privacy to these applicants and would not significantly advance the public's right to be informed about what government is doing.
For the reasons that follow, we find that the County Judge Executive properly denied the request for a list of applicants for the various positions under authority of KRS 61.878(1)(a).
To begin, the request for a list of the names of the applicants was a request for information, rather that a request for specifically described records. The Kentucky Open Records Act addresses requests for records, not requests for information. 03-ORD-028. At page 2 of 95-ORD-131, the Attorney General observed.
Requests for information, as distinguished from records, are outside of the scope of the open records provisions. See, e.g., OAG 89-77. Our position is premised on the notion that "[o]pen records provisions address only inspection of records . . . [and] do not require public agencies or officials to provide or compile specific information to conform to the parameters of a given request.
Ms. Curts' request for a list of the names of the applicants was one for information, rather than one for precisely described records. However, the County Judge Executive essentially waived this argument when he denied the request on the basis of KRS 61.878(1)(a).
In addressing the operation of KRS 61.878(1)(a) to application materials submitted by unsuccessful applicants, this office in 04-ORD-003, at p. 6-9, explained:
In Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the Kentucky Supreme Court established the standard by which we must analyze the propriety of a public agency's reliance on KRS 61.878(1)(a) in denying access to public records. Recognizing that the Open Records Act "exhibits a general bias favoring disclosure, " the Court formulated a balancing test under which the interest of the public's right to expect its agencies to properly execute their statutory functions is measured against the interest of individuals in the nondisclosure of records containing information that touches upon the intimate and personal features of their lives. Id. at 327-328. A determination of whether a public agency properly relied upon KRS 61.878(1)(a) in denying access to public records hinges on whether the offense to personal privacy that would result from disclosure of the information outweighs the benefit to the public and is "intrinsically situational." Id. at 328; 03-ORD-084, supra, p. 4. As we recently observed, the "clearly unwarranted" standard "tips the scales in favor of disclosure. " Id .
Conclusively resolving the question of whether an invasion of privacy is warranted with respect to the applications of unsuccessful applicants for public employment, we have observed:
OAG 89-90, p. 8.
We have consistently upheld the denial of access to application materials submitted by unsuccessful applicants for public employment on the basis of KRS 61.878(1)(a). 03-ORD-84, p. 5. For example, in 02-ORD-221, 00-ORD-90, 97-ORD-72, 96-ORD-1, and 95-ORD-38, the Attorney General determined that the public agencies to which the requests were directed properly withheld applications and resumes of unsuccessful applicants whose identities were not known. Id . In OAG 90-113, we expressly found that applications and resumes submitted by unsuccessful applicants for public employment are exempt from disclosure and copying under the Open Records Act pursuant to KRS 61.878(1)(a). See 96-ORD-1, supra. At page 5 of 00-ORD-90, supra, we adopted the following analysis from pages 2 and 3 of 97-ORD-72:
Core at 948.
Turning to the issue of the unsuccessful applicants, the court concluded that "the balance tips the other way." Core at 948. At page 949, the court stated:
Although the court did not comment on it, the unsuccessful employees might also be embarrassed by disclosure that they wished to leave their present employment.
See also 96-ORD-1, supra.
Against this privacy interest, we weigh the competing public interest in disclosure of the application materials of unsuccessful applicants. That interest has also, in general, been characterized as nominal at best. Although the public has a significant interest in the competence of the applicants public agencies hire and the agencies' adherence to proper hiring practices, as reflected in the successful applicants' application materials, the public's interest in disclosure of the application materials of unsuccessful applicants is reduced insofar as the latter application materials are "unnecessary for the public to evaluate the competence of people who were appointed" and "may be misleading because the appointments were made on the basis of both the applications and the interviews."
Core v. United State Postal Service, 730 F.2d 946, 949 (4th Cir. 1984) cited in 00-ORD-90, p. 6.
In the instant appeal, the County Judge Executive articulated a legitimate privacy interest of the applicants and in the absence of a heightened public interest, such as an allegation of improper hiring practices, we continue to adhere to the long line of precedent of this office. Accordingly, we conclude that the County Judge Executive properly relied upon KRS 61.878(1)(a) in denying the request for a list of applicants for the various county positions submitted to his office at the close of business on May 6, 2008.
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.