Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Cabinet for Health and Family Services violated the Kentucky Open Records Act in denying Kindra Kilgore's March 20, 2010, request for "a complete copy of Lisa Prewitt's 2009 evaluation." By letter dated March 30, 2010, Jay Klein, Division of Employee Management, advised Ms. Kilgore that in OAG 77-394, the Attorney General held that "'evaluation of [an employee's] performance is a matter of opinion and does not constitute any action on the part of the [agency]. . . . The action which the [agency] takes in light of the evaluation is what the public is entitled to know.'" Arguing that "the individual can receive disciplinary action or gain annual days based upon the results of that evaluation," and that it consequently should be publicly accessible, Ms. Kilgore initiated this appeal shortly thereafter. Although the CHFS initially violated KRS 61.880(1) by failing to cite the applicable statutory exception and briefly explain how it applied, relying instead on a decision of this office which predates
Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006), the controlling precedent, in denying access, the CHFS satisfied its burden of proof on appeal by relative to KRS 61.878(1)(a). In the absence of any evidence to establish a superior public interest in disclosure, this office affirms the agency's ultimate disposition of Ms. Kilgore's request.
Upon receiving notification of Ms. Kilgore's appeal from this office, Assistant Counsel Anne Burnham responded on behalf of the CHFS, initially noting that Mr. Klein "impliedly relied upon KRS 61.878(1)(a) , as cited within OAG 77-394, in withholding Ms. Prewitt's 2009 performance evaluation. " Ms. Burnham then quoted an excerpt from 09-ORD-150, in which this office found "no reason to depart from 07-ORD-125," and thus concluded that "[i]n the absence of any 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," this office had to affirm the denial of the request.
As Ms. Burnham correctly observed, "Ms. Kilgore has provided no evidence that Ms. Prewitt, or anyone that she supervises, has committed any criminal act or misconduct. " In fact, Ms. Burnham continued, she would submit that Ms. Kilgore cannot provide any specific facts that Ms. Prewitt "has committed a criminal act or misconduct in her role as SRA [Service Region Administrator]," or that "anyone she directly supervises has committed a crime or engaged in misconduct. " Accordingly, Ms. Burnham argues that Ms. Kilgore has failed to demonstrate "a public interest that outweighs Ms. Prewitt's right to privacy in her evaluation and, therefore, on the basis of KRS 61.878(1)(a) , and the decisions cited herein," the denial by the CHFS should be upheld.
As a public agency, the CHFS must comply with procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access. 1 More specifically, KRS 61.880(1) dictates the procedure that every public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208.
By its express terms, KRS 61.880(1) requires public agencies to issue a "detailed and particular" written response within three business days of receiving a request. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. Although the Office of Human Resource Management within the CHFS apparently did not receive Ms. Kilgore's March 20 request until March 29, and Mr. Klein responded the next day, the record is unclear as to when the CHFS Records Custodian actually received it. Even assuming the CHFS responded within three business days after the Records Custodian received the request, failing to cite the applicable statutory exception, and briefly explain how it applied to the record being withheld, as the CHFS did initially, constituted a violation of KRS 61.880(1). 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. In light of this determination, the remaining question is whether the CHFS properly denied Ms. Kilgore's request for the specified evaluation on the basis of KRS 61.878(1)(a).
Although Ms. Prewitt is apparently the head of the service region, that fact is no longer dispositive standing alone. As previously indicated, Cape Publications v. City of Louisville (involving a denial of access to performance evaluations of employees of the Louisville and Jefferson County Parks Department who had been accused of criminal wrongdoing in the course of their duties) is now the controlling precedent on the issue of access to public employee performance evaluations. Citing the "case-by-case analysis required by the outstanding law on the Open Records Act, " 2 the Court in Cape Publications concluded that "[a] bright-line rule completely permitting or completely excluding from disclosure public employees' performance evaluations is at odds with existing law[.]" Id. at 14. Accordingly, this office is not permitted to focus exclusively on the rank of the employee whose evaluation has been requested in determining whether it was properly withheld, the approach expressly rejected by the Court in Cape Publications, but instead must consider the extent to which disclosure "would shed light on the operation of the public agency" while avoiding embarrassment to the subject of the evaluation caused by release of "truly personal information" the disclosure of which "would serve no public interest. " Id. at 14.
As in 09-ORD-150, this office believes the reasoning found in 07-ORD-125 (involving a request for the performance evaluation of a school principal) is equally persuasive on the facts presented. Noting that the position of the employee whose evaluation was at issue in 07-ORD-125 was not dispositive in light of Cape Publications, the Attorney General expressly rejected the position that disclosure was justified on the basis of KRS 61.878(1)(a) for the following reasons:
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 [or, in this case, Service Region Administrator's] evaluation that would override his [her] long-recognized privacy interest in that record. Accord, 07-ORD-123. We find no error in the Board's [CHFS's] decision to withhold this particular record(s).
07-ORD-125, pp. 2-3; 09-ORD-150, pp. 9-10.
"[I]in the absence of any specific facts indicative of a public interest in disclosure of the requested performance evaluation that outweighs the privacy interest of the individual in [her] evaluation," as in 07-ORD-125 and 09-ORD-150 this office affirms the agency's denial of Ms. Kilgore's request. Compare 09-ORD-113 (holding that Kentucky Community & Technical College System violated Act in redacting evaluation of President of Owensboro CTCS given the facts presented, "specifically confusion surrounding the decision to transfer" her to "work on special projects" and the substantiated public interest in knowing why she was removed from her position). 3
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.
Kindra KilgoreJay KleinAnne Burnham
Footnotes
Footnotes
1 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994).
2 Noting that none of the prior judicial opinions applying KRS 61.878(1)(a) directly involved public employee performance evaluations, the Court observed:
[W]e do have the benefit of a long line of opinions of the Attorney General which support the position that the information in performance evaluations is private, both for the employee and for the evaluator. OAG 79-128, OAG 79-348, OAG 80-58, and OAG 82-204. The confidentiality of performance evaluations allows evaluators to speak more frankly about an employee than they might if the evaluations were known to be open to public disclosure. In addition, performance evaluations certainly can contain a great deal of personal information, and should not be subject to disclosure without the most pressing of public needs. The only exception the opinions of the Attorney General have recognized is the evaluation of the head of an agency itself, the person to whom all other persons in the agency ultimately answer. . . .
The line of reasoning established by the Attorney General accepts the existence of a privacy interest in performance evaluations. The performance of an agency head is of significant public interest, and the disclosure of a performance evaluation of someone in such a position of authority serves that public interest. See 92-ORD-1145 (holding a school superintendent's evaluation not exempt). On the other hand, the performance of an ordinary employee or even one of comparatively high rank is not of such significant public interest that it should be subject to disclosure.
Cape Publications at 13.
3 On August 24, 2009, this office was notified that 09-ORD-113 (In re: Messenger-Inquirer /KCTCS) has been appealed to Woodford Circuit Court, Case No. 09-CI-369.