Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky Community and Technical College System violated the Open Records Act in denying 1 Messenger-Inquirer Education Reporter Joy Campbell's August 21, 2009, request for:
1. a letter from John Hager, Owensboro, to KCTCS President Michael McCall regarding former OCTC President Paula Gastenveld's use of endowment funds;
2. the 2007-2009 performance evaluations of Kevin Beardmore and Cindy Fiorella;
3. the Performance Improvement Plan for Cindy Fiorella created in August 2008;
4. the faculty evaluations of Paula Gastenveld conducted in 2009;
5. all correspondence, including emails, between former Chancellor Keith Bird and former OCTC President Paula Gastenveld, between May and June 2008.
For the reasons that follow, we find that KCTCS improperly denied requests 1, 2, and 3, and that its failure to produce records responsive to request 5 suggests potential records management issues. KCTCS's inability to produce a record responsive to request 4, owing to its nonexistence, 2 cannot be deemed a violation of the Open Records Act; however, its original response was procedurally deficient as to this request and Ms. Campbell's other requests.
In a response dated August 25, 2009, KCTCS denied Ms. Campbell's request for Mr. Hager's letter to President McCall on the basis of KRS 61.878(1)(i) and Courier Journal v. Jones, 895 S.W.2d 6 (Ky. App. 1995). Relying on KRS 61.878(1)(a) and (j), as well as 00-ORD-139, KCTCS also denied her request for Mr. Beardmore and Ms. Fiorella's 2007-2009 performance evaluations, and correspondence exchanged by Keith Bird and Paula Gastenveld in May and June of 2008. KCTCS provided no further explanation. Shortly thereafter, Ms. Campbell initiated this appeal.
In supplemental correspondence directed to this office following commencement of Ms. Campbell's appeal, KCTCS characterized the disputed Hager letter as "an expression of Mr. Hager's opinions, not the agency's," asserting that it enjoyed protection as correspondence with a private individual that could not "give notice of the agency's 'final action. '" Additionally, KCTCS maintained that the letter enjoyed protection as "preliminary in nature" per KRS 61.878(1)(j), "offer[ing] opinions which have not been incorporated into policy for the public agency. " KCTCS affirmed its reliance on KRS 61.878(1)(a) in denying Ms. Campbell access to Beardmore and Fiorella's 2007-2009 performance evaluations "and the 'faculty evaluations of Paula Gastenveld conducted in 2009' . . . due to the nature of the documents and the statements made therein." Additionally, KCTCS explained that because they are "drafts," the performance evaluations and faculty evaluations of the named individuals "are designed to allow opinions to be expressed in a forum that is not intended to give notice of the agency's final action. " In support, KCTCS cited Cape Publications, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818 (Ky. 2008) and Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994) for the proposition that "information should not be released which touch[es] 'upon the personal features of private lives.'"
With reference to Ms. Campbell's request for correspondence exchanged by Keith Bird and Paula Gastenveld from May to June 2008, KCTCS advised:
Officials at the agency were unsuccessful in locating any printed documents nor any emails exist, which were exchanged between these persons more than 15 months ago. Therefore, the agency needs to restate its denial to include that it has no documents responsive to this request of Ms. Campbell. With respect to the exhaustiveness of the search of the agency's records, staff at the agency manually examined the records which remain from Keith Bird and Paula Gastenveld, and found nothing responsive. The agency's computer systems were also examined, but nothing was responsive was found. Neither was any email between the parties found in the KCTCS email system or in the mailboxes of the individuals during the time specified in the instant Open Records Request.
In closing, KCTCS questioned Ms. Campbell's statement that she is "trying to gather information to help the public understand why a seemingly popular community college president was fired," asserting that Kentucky's Supreme Court "has made it clear that 'the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity. '" Citing Kentucky Board of Examiners of Psychologists v. Courier-Journal, 826 S.W.2d 324, 328 (Ky. 1992). Respectfully, more is at issue here than mere public curiosity.
In the interest of brevity, we will not restate the procedural requirements of the Open Records Act except to note that KRS 61.880(1) requires not only "a statement of the specific exception authorizing the withholding of the record," but also "a brief explanation of how the exception applies to the record withheld." KCTCS's August 25 denial of Ms. Campbell's request contained no accompanying explanation of any kind. See 07-ORD-262, p. 5, 6. The record on appeal strongly suggests that KCTCS made no effort to review the requested records before responding. This can be inferred from the fact that KCTCS did not ascertain that no correspondence exchanged by Bird and Gastenveld existed until after Ms. Campbell initiated her appeal, prompting it to "restate its denial to include that it has no [responsive] documents . . ." in its supplemental response. Similarly, KCTCS continued to assert the protected status of Gastenveld's faculty evaluations until asked by this office to produce those evaluations for in camera inspection per KRS 61.880(2)(c) . Thus, in its October 5 cover letter that accompanied the disputed records, KCTCS stated that it could "not provide copies of 'faculty evaluations of Paula Gastenveld conducted in 2009' because we have found that no such evaluations were conducted." Having examined Beardmore and Fiorella's 2007-2009 performance evaluations, we must assume that KCTCS did not review these documents prior to responding to Ms. Campbell's request or appeal inasmuch as the evaluations do not contain information of any kind that "touches upon the personal features of private lives."
KRS 61.872(1) clearly states that "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884 . . . ." The Open Records Act is thus premised on the "basic policy . . . that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871. Lest there be any lingering doubt, the Kentucky Supreme Court has declared that Kentucky's Act "exhibits a general bias favoring disclosure. " Board of Examiners at 327.
In approaching Ms. Campbell's request, KCTCS apparently operated under the erroneous belief that records are presumed closed. Such a presumption is contrary to the overwhelming weight of authority. KCTCS is statutorily assigned the burden of proof in sustaining the denial of access to any public record per KRS 61.880(2)(c), and its apparent failure to review the disputed records, and to provide an explanation for the withholding of those records in terms of the cited exceptions, is violative of the procedural requirements of the Act and inimical to the letter and spirit of the law.
In a recent decision issued to KCTCS, this office determined that the agency improperly redacted portions of Gastenveld's 2008 performance evaluation. 3 At page 3 of 09-ORD-113, we observed:
Since it was issued in March, 2006, Cape Publications v. City of Louisville, 191 S.W.2d 10 (Ky. App. 2006), 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 . . . .' 4 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., above. 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.
Continuing, we opined:
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.
09-ORD-113, p. 4.
In response to questions posed by this office, 5 the Messenger-Inquirer advised that Beardmore is Vice President of Student Affairs, and Fiorella Vice President of Community and Workforce Development, at Owensboro Community and Technical College, that both are named in a lawsuit filed by Gastenveld in which she alleges that she was defamed by them in a document entitled "Qualifications for the President of Owensboro Community and Technical College Versus the Reality," that she "attempted to raise issues regarding the job performance of Beardmore and Fiorella to the point of placing Fiorella on a Performance Improvement Plan" and that she raised questions concerning the expenditure of funds by OCTC's Center for Community and Workforce Development which Fiorella oversees. 6 Additionally, Ms. Campbell provided this office with a newspaper article in which the Daviess County Judge-Executive was quoted as having said that "he called [KCTCS President Michael] McCall to speak on behalf of two key employees at the college who feared for their jobs." 7
Regardless of the outcome of Gastenveld's pending lawsuit, any one of these claims addresses Beardmore and Fiorella's job performance, elevating the public's interest in documents that specifically relate to their performance and that generally "shed light on the operation of the public agency. " Cape Publications at 14. Our review of the disputed evaluations, on the other hand, reveals no "truly personal information. " Again, we believe KCTCS misapprehends the competing public and private interests by suggesting that mere curiosity motivates the Messenger-Inquirer's open records requests and that a public employee's job performance is somehow personal. The public's right to know "is premised upon the public's right to expect its agencies properly to execute their statutory functions." Kentucky Board of Examiners at 328. "Inspection of records," the Supreme Court has declared, "may reveal whether the public servants are indeed serving the public and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." Id. Echoing this view, in Zink v. Commonwealth of Kentucky, 902 S.W.2d 825, 828, (Ky. App. 1994) the Court of Appeals confirmed that "we . . . determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved."
Beardmore and Fiorella are public employees whose job performance has been called into question as an indirect consequence of the reassignment of Gastenveld and the resulting lawsuit. Here, as in Cape Publications v. City of Louisville, we consider the facts of the case and conclude that the public interest in knowing what Gastenveld thought of the job performance of the public officials she supervised and whose actions may have contributed to her reassignment outweighs the privacy interest of those officials. This is especially true in light of the fact that the requested documents, both the evaluations and the performance improvement plan, contain no personal information as described in City of Louisville, above at 14 ("appearance, grooming habits, and the like"), University of Louisville Foundation, above (identity of donor to fundraising arm of state university, donor's address, amount of donation, and conditions placed upon the donation), or Zink (home address, telephone number, date of birth, social security number, marital status, wage rate, and number of dependents of injured workers filing for workers' compensation). KCTCS therefore violated the Open Records Act in denying Ms. Campbell's request for Beardmore's and Fiorella's 2007-2009 performance evaluations and Fiorella's performance improvement plan. 8
We further find that KCTCS violated the Open Records Act in withholding John Hager's letter to President McCall relating to Gastenveld's "use of endowment funds." In denying this request, KCTCS invoked KRS 61.878(1)(i) and (j), characterizing the letter as "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, " and as a preliminary document "offer[ing] opinions which have not been incorporated into policy for the public agency. " We disagree. Our analysis proceeds from a line of decisions issued by this office recognizing that KRS 61.878(1)(i), does not extend protection to "all writings from individuals to a government agency," but excludes writings upon which "an agency is expected to rely . . . to take some action . . . [and is] generally reserved for that 'narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality.'" 07-ORD-181, p. 4, citing OAG 90-142 and 00-O RD-168. A copy of 07-ORD-181 is attached hereto and incorporated by reference insofar as it recognizes that correspondence "submitted with the goal of advocating or recommending a certain course of action" and that contains no suggestion that the "candor of the correspondents was dependent upon assurances of confidentiality," is not protected by KRS 61.878(1)(i).
Our review of the disputed letter confirms that its author, Mr. Hager, serves on the OCTC Foundation, Inc., Board of Directors, and that he submitted it with the expectation that President McCall would take action as described therein. Nowhere in the letter does Mr. Hager request anonymity or ask that President McCall shield his concerns from public disclosure. Consistent with the line of decisions cited above, we find that the letter does not qualify for protection from public inspection under KRS 61.878(1)(i), because it cannot be properly characterized as "correspondence with private individuals," or KRS 61.878(1)(j), because it was "final upon submission."
With reference to Ms. Campbell's request for all correspondence exchanged by former chancellor Keith Bird and Gastenveld between May and June 2008, KCTCS advised this office that staff:
manually examined the records which remain from Keith Bird and Paula Gastenveld and found nothing responsive. The agency's computer systems were also examined, but nothing responsive was found. Neither was any email between the parties found in the KCTCS email system or in the mail boxes of the individuals during the time specified in the instant Open Records Request. 9
While we question the adequacy of this search in light of the analysis contained in 06-ORD-022, and acknowledge that KCTCS cannot produce records that no longer exist, we find that the absence of any responsive documentation suggests potential records management issues that may be appropriate for review by the Kentucky Department for Libraries and Archives.
In 06-ORD-022, a copy of which is attached hereto and incorporated by reference, this office addressed the adequacy of an agency's search for a particular email that was more than a year old. We concluded:
[A]lthough the search for responsive email conducted by the [agency] did not employ "methods which c[ould have] reasonably be[en] expected to produce the record[] requested," 95-ORD-96, p. 7, and a broader search was clearly warranted, "nothing [otherwise] appears [in the record on appeal] to raise the issue of good faith," id., the disputed record having apparently been destroyed within a timeframe that was consistent with records retention requirements and not for the purpose of willful concealment. We are therefore unwilling to suggest that the [agency] was under a duty to employ specialized processes to restore the record, especially in view of the fact that the record was more than a year old and presumably no longer available on a backup tape, or to otherwise assign error to the [agency] for its inability to produce the record. 10
06-ORD-022, p. 9.
Like the subject agency in 06-ORD-022, correspondence generated by or for KCTCS, whether electronic or hard copy, is governed by the State University Model Retention Schedule, incorporated into administrative regulation at 725 KAR 1:061. Under that schedule KCTCS is required to permanently retain official correspondence (U0100) and to retain general correspondence for a period no longer than two years (U0101). A copy of the pertinent records series is attached hereto. As noted, the paucity of official or general correspondence between these high ranking officials for a two month period raises potential records management issues. For this reason, we have referred this matter to the Kentucky Department for Libraries and Archives.
Finally, we affirm KCTCS's ultimate denial of Ms. Campbell's request for Gastenveld's 2009 faculty evaluations on the basis of their nonexistence. Once again, it is apparent that KCTCS presumptively denied this request "pursuant to KRS 61.878(1)(a) and (j)" without first ascertaining whether faculty evaluations had been conducted. On October 5, KCTCS notified this office that "a survey was conducted as part of the preparations for President McCall's evaluation of Dr. Gastenveld," that the survey was disseminated to both faculty and staff, and that the results "were not differentiated." This information should have been communicated to Ms. Campbell in the agency's August 25 response to her original request, and the failure to so advise her rendered that response procedurally and substantially deficient. We cannot otherwise assign error to KCTCS for its inability to produce nonexistent faculty evaluations. Accord, 07-ORD-002 (enclosed).
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 KCTCS honored the Messenger-Inquirer's request for "OCTC's accounts payable records for June and July 2008."
2 KCTCS acknowledged the existence of an online survey conducted in spring 2009, "as part of the preparations for President McCall's evaluations of Dr. Gastenveld," but indicates that the survey was distributed to faculty and staff and the responses "not differentiated."
3 09-ORD-113 is currently on appeal in the Woodford Circuit Court, Division II (09-CI-369), filed on August 20, 2009.
4 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. "
5 KCTCS objected to the Attorney General's submission of these questions, complaining that KRS 61.880(2)(c) only empowers this office to request additional documentation from the public agency to substantiate its position, and suggesting that to ask "a complaining witness to buttress their position, without contest, is a recipe for a skewed record." Noting that KCTCS was free to contest the Messenger-Inquirer's response to our inquiry, we could not accept KCTCS's argument that "the omission of language authorizing us to obtain additional information from the complaining party precludes us from doing so," (emphasis in original), and concluded that because a public agency has as many as four opportunities to substantiate its position, "the potential for a 'skewed record' seems to lean more heavily in favor of the public agency. "
6 Paula M. Gastenveld, Ed. D. v. Kentucky Community & Technical College System; Kevin Beardmore; Cindy Fiorella, Michael Boyd; Vicki Boyd; Nicholas Brake; Reid Haire; Margaret S. Howard; David L. Johnson; John S. Hager; and Michael McCall, 09-CI-00341. (Woodford Circuit Court, Division I).
7 "Grievances Given to System Chief Critical of Ex-President's Leadership, Character," Owensboro Messenger-Inquirer, August 14, 2009.
8 We reject KCTCS's argument that these records enjoyed protection as "drafts" or preliminary documents not reflecting final action. In our view, the evaluations and performance improvement plan were final when Gastenveld signed off on them. See, 00-ORD-177 (enclosed).
9 Again, we note that KCTCS originally denied this request "pursuant to KRS 61.878(1)(a) and (j)," suggesting that no effort was made to locate, review, and disclose nonexempt correspondence at the time of the request.
10 At pages 6 and 7 of 06-ORD-022, we suggested that in conducting its search for electronic records "using the search method which could reasonably be expected to produce the requested records," the agency should search beyond the correspondents' personal folders inasmuch as the correspondents "might have saved the message in, for example, an archive file, a message file, a text file, or an html file." Noting that email is easily propagated, we further suggested that it was incumbent on the agency "to search the mail server to determine if [messages] were forwarded to [agency] employees or officials, as well as the 'in boxes' of employees or officials who might reasonably have been expected to receive [them]."