Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Community & Technical College System properly relied on KRS 61.878(1)(a) in denying Messenger-Inquirer reporter Joy Campbell's June 2, 2009, request for "access to and a copy of any records concerning the job performance of Paula Gastenveld in her role as president of Owensboro Community & Technical College [OCTC] . . . includ[ing] copies of letters and lists of grievances/ charges against Dr. Gastenveld . . . as well as a letter of support . . . ." For the reasons that follow, we affirm KCTCS's disposition of The Messenger-Inquirer's requests for letters of support and letters of grievance, but find that its reliance on KRS 61.878(1)(a) to support nondisclosure of "[t]he evaluative portions of the records regarding Dr. Gastenveld's evaluation" was misplaced.
In its June 10 response to Ms. Campbell's request, KCTCS explained that it could not produce "a letter or list of grievances against Dr. Gastenveld . . . in that no such document exists." The agency did, however, agree to produce a copy "of the letter of support of Dr. Gastenveld signed by OCTC faculty and staff . . . ." With reference to Dr. Gastenveld's evaluation, KCTCS recited the language of KRS 61.878(1)(a) and cited 99-ORD-137, releasing what it referred to as "a redacted copy." Shortly thereafter, Ms. Campbell initiated this appeal questioning KCTCS's redactions in light of
Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006).
In supplemental correspondence directed to this office following commencement of The Messenger-Inquirer's appeal, KCTCS elaborated on its reliance on 99-ORD-137, an open records decision which predates Cape Publications and recognizes that "administration at the University of Kentucky, including the athletic director, general counsel, special assistants, chancellors, and vice presidents, have a somewhat reduced expectation of privacy in their evaluations, but that the evaluation portions are still exempt." KCTCS analogized the community and technical college president to these officials at the University of Kentucky, asserting that it is the president, both at UK and at KCTCS, and not his or her subordinates, who is ultimately responsible for the agencies' operation. KCTCS distinguished Cape Publications v. City of Louisville, above, characterizing it as "a narrow decision regarding a specific set of circumstances . . . [involving] prosecution for criminal activity on the job . . . ." It was KCTCS's position that it "satisfied the public interest by having provided a copy of the evaluation signed by President McCall and the advisory document provided to him by the local directors for use during the evaluation . . . [minus] the subjective, evaluative information."
In response to this office's KRS 61.880(2)(c) 1 requests, KCTCS provided us with an unredacted copy of the evaluation and The Messenger-Inquirer "articulat[ed] a heightened public interest in Dr. Gastenveld's evaluation that would support disclosure of the redacted portions per Cape Publications v. City of Louisville, [above]." By letter dated July 15, 2009, Ms. Campbell advised:
On May 13, Dr. Michael McCall, the KCTCS president, attended a called meeting of the OCTC board of directors. A closed session on proposed or pending litigation against the college was held, and Gastenveld left that meeting and left the building without comment. That meeting lasted well into the night, and after it ended, neither McCall nor local board chairman Allen Eskridge would shed any light on what was taking place.
On May 14, Gastenveld announced she was a finalist for a presidency at an Idaho community college. On May 29, McCall, through his staff, announced that Gastenveld had been transferred to the KCTCS office in Versailles and provided no explanation for his decision. He was on vacation and unavailable for comment. She would be helping with special projects in the chancellor's office, the release said.
In the months since her removal, Ms. Campbell explained, conflicting rumors have circulated culminating in the Owensboro Citizens Committee on Education's expression of formal concern "for the process used to remove Gastenveld," and its call "for a united front to ensure that fairness, openness, and accountability are realities in [the] community." On behalf of The Messenger-Inquirer, Ms. Campbell argued that "[t]he public deserves to know why a seemingly popular college president was abruptly removed," and asserted that "[h]er evaluations will provide more insight into that." We agree.
Since it was issued in March, 2006, Cape Publications v. City of Louisville, above, has represented controlling precedent on the issue of access to public employee performance evaluations, compelling us to avoid facile privacy analyses in which "[a] bright-line rule completely permit[s] or completely exclud[es] from disclosure public employees' performance evaluations . . . ." 2 Id. at 14. Instead, we proceed on "the case-by-case analysis required by the outstanding law on the Open Records Act, " id. with the understanding that "the Act is weighted toward disclosure . . . ." Id. at 12, citing
Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). We are not, therefore, solely guided by the employee's position in the chain of command, a view expressly rejected by the court in Cape Publications, above at 14, but on the extent to which disclosure "would shed light on the operation of the public agency" while avoiding embarrassment to the subject of the evaluation through release of purely personal information that does not serve the public interest. Id.
We begin by noting that, to its credit, KCTCS has already released the bulk of Dr. Gastenveld's performance evaluation. Only three portions of the evaluations are redacted, and these can generally be described as her overall performance rating, the Board of Directors' evaluations, and responses to two of three questions. None of the redacted information can be described as "truly personal information . . . the disclosure of which would serve no public interest [and] potentially embarrass the person who is the subject of the evaluation . . . ." Id. at 14. It consists, exclusively, of "information about the employee's job performance that would shed light on the operation of the public agency, " id., in much the same way as the information disclosed. "Considering the facts of this case," specifically, confusion surrounding the decision to transfer Dr. Gastenveld to KCTCS's Versailles office for work on special projects, the public interest in the redacted portions of the evaluation outweighs any privacy interests implicated. As The Messenger-Inquirer correctly observes, the public is entitled to know why Dr. Gastenveld was removed, and "her evaluation may provide more insight into that" question. Compare, 07-ORD-125 (affirming denial of school principal's evaluation where no facts were presented that would support a claim of a superior public interest outweighing his privacy interest in that record). Accordingly, we find that KCTCS violated the Open Records Act in redacting Dr. Gastenveld's evaluation before releasing it to The Messenger-Inquirer.
The Messenger-Inquirer does not object to, and we find no error in, KCTCS's disposition of Ms. Campbell's remaining requests.
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.
Joy CampbellJ. Campbell Cantrill III
Footnotes
Footnotes
1 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
2 The privacy exception to the Open Records Act is codified at KRS 61.878(1)(a) and authorizes public agencies to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "