Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the University of Louisville improperly relied on KRS 61.878(1)(a) and (j) in denying Dr. Rudolph S. Parrish access to certain records relating to "the 2009 promotions to the rank of professor and/or award of tenure for Susmitta Datta, Ph.D., and Shesh Rai, Ph.D., of the Department of Bioinformatics and Biostatistics, School of Public Health and Information Sciences . . . during the period January 1, 2009, to the present date." Dr. Parrish is the former chair of that department. Having reviewed the disputed records under authority of KRS 61.880(2)(c), 1 we find no support in the law for the University's denial of those preliminary and non-evaluative records that relate to Dr. Parrish, those preliminary records that contain neither recommendations, opinions, nor policy formulation, and those non-preliminary and non-evaluative records that reside in Drs. Datta and Rai's promotion/ tenure files.
On January 26, 2010, the University agreed to provide Dr. Parrish access to "the c.v., the form P103, and the like," in the promotion/ tenure files but denied him access to "any personnel evaluation," characterizing the latter as "preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " The University cited KRS 61.878(1)(j) and KRS 61.878(1)(a) in support, noting that, with regard to the latter exception, "the writers of evaluations work under an expectation of confidentiality."
Over the next six months, Dr. Parrish and the University exchanged a number of emails culminating in the University's decision to release 9 of 169 "communications concerning the processes and procedures followed in those promotions . . . ." 2 In the course of this exchange, Dr. Parrish offered clarifications and requested status updates. The University treated these emails as new requests, assigning no less than five log numbers to them. Consequently, Dr. Parrish received a document on February 4, 2010, "a few additional pages" on February 8, 2010, and 9 emails on May 11, 2010. The remaining emails, the University explained, "all specifically deal with matters related to the tenure/ promotion cases of Professors Datta and Rai including letters of recommendations, salary negotiations, etc." The University offered assurances that "[n]one of these communications constitute final action" and asked that Dr. Parrish "accept this summary in lieu of produc[tion of] an itemized list of the withheld documents," suggesting that creation of a list would constitute an unreasonable burden within the meaning of KRS 61.872(6). 3 Responding to Dr. Parrish's request for redacted copies of the disputed emails, the University advised that "the product after redacting would essentially only have the header and date [since the] details discussed in those emails entirely pertain to the promotion/ tenure of Drs. Datta and Rai."
Dissatisfied with the ultimate resolution of his open records request, Dr. Parrish initiated this appeal, questioning the University's failure to comply with KRS 61.880(1) by affording him timely access to the requested records and its reliance on KRS 61.878(1)(a) and (j). 4 He maintained that he had requested no personal information and had identified a compelling public interest "in making transparent the processes and procedures followed by the University in promoting and compensating its employees." Further, he argued that KRS 61.878(1)(j) is inapplicable inasmuch as "interim documentation" forfeited its preliminary character when final decisions were made. Finally, he argued that as a staff member excluded from the process, he enjoys an enhanced right of access pursuant to KRS 61.878(3).
The University disputed Dr. Parrish's position in supplemental correspondence directed to this office, reasserting the privacy interests of the evaluators and the potential "chilling effect" that would result from disclosure of their identities. In support of its argument that the disputed emails are shielded from disclosure by KRS 61.878(1)(j), the University explained:
[T]he [Promotion and Tenure Committee] has no independent authority to issue a binding decision. Their work, though final as to its own role, remains preliminary. The Dean maintains responsibility to approve/deny promotions and awards of tenure . . . . The dean did not incorporate the committee's work into a written report or adopt it as his final decision, therefore the work product of the PAT Committee remains preliminary.
The University did not address Dr. Parrish's enhanced right of access under KRS 61.878(3). This represents a critical error in its analysis.
Kentucky's Open Records Act has long recognized that a public agency employee, including a university employee, has the right to inspect and to copy any record that relates to him. KRS 61.878(3) 5 contains a nonexclusive catalog of the records to which public employees enjoy an enhanced right of access, specifically identifying "preliminary and other supporting documentation. " Our in camera review of the disputed emails confirms the existence of emails identifying Dr. Parrish by name or relating to him. The University of Louisville violated the Open Records Act by denying Dr. Parrish access to emails in which his name appears or that otherwise relate to him. Under separate cover, we have returned the disputed emails to the University, each bearing a numeric designation in the upper right corner corresponding to the index which appears at the conclusion of this decision. It is incumbent on the University to disclose those emails categorized as nonexempt to Dr. Parrish if they have not already been disclosed.
Further, the University violated the Open Records Act by denying Dr. Parrish access to emails that did not consist, or consisted only in part, of recommendations, opinions, or policy formulation. KRS 61.878(1)(j) authorizes nondisclosure of "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. " A number of the emails in dispute are completely devoid of recommendation, opinion, or policy formulation, and many more consist only in part of recommendation, opinion, or policy formulation. This office has frequently opined that KRS 61.878(1)(j) is "intended to protect the decision-making process by encouraging the free exchange of opinions and ideas, and to promote informed and frank discussions of matters of concern to the agency." 00-ORD-139, p. 6, cited in 07-ORD-161, p. 5. We have recognized with equal frequency that the purpose underlying KRS 61.878(1)(j) "is not served by nondisclosure of records that are largely devoid of opinions and recommendation. " 07-ORD-108, p. 6 cited in 07-ORD-161, p. 6. Emails or portions of emails consisting of fact or narrative rather than recommendation, opinion, or policy formulation, the Attorney General has determined, "do not enjoy protection under KRS 61.878(1)(j)." Id. Our in camera review of the disputed emails confirms the existence of emails, or portions of emails, that contain no recommendations, opinions, or policy formulations. Where fact and recommendation/ opinion/ policy formulation are commingled, it is incumbent on the University to redact the protected material and make the nonprotected material available for Dr. Parrish's inspection pursuant to KRS 61.878(4). 6
Notwithstanding the compelling public interest in disclosure of records documenting alleged irregularities in the promotion and tenure process that Dr. Parrish articulates, we concur with the University that some of the disputed emails qualify for protection from disclosure under KRS 61.878(1)(a) and (j). The University correctly describes the standard for determining when a preliminary recommendation or preliminary memorandum in which opinions are expressed or policies formulated or recommended forfeits protection under the statute. If, as the University indicates, the Promotion and Tenure Committee merely makes a recommendation to the Dean and has no authority to issue a binding decision, written communications underlying that recommendation enjoy continued protection even after the Dean makes a final decision. This standard, which was first established by the courts in City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982), continues to govern access to preliminary recommendations and memoranda containing opinion and formulating policy. Our in camera review of the disputed emails confirms the existence of some emails that fall squarely within the parameters of KRS 61.878(1)(j) and some that fall, in whole or in part, within the parameters of KRS 61.878(1)(a) as evaluative in nature. Accord, Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006).
It is unclear whether Dr. Parrish's request was aimed at securing access to Drs. Datta and Rai's promotion and tenure triptychs. On more than one occasion, the University agreed to provide him with "the c.v., the form P103, 7 and the like," but in subsequent communications he chose to focus on the promotion and tenure process. Although the University fails to indicate what triptych records qualify as "and the like," it objects to disclosure of "personnel evaluations" under KRS 61.878(1)(a) and (j). We find that neither of these exceptions authorizes nondisclosure of non-evaluative records consisting of:
. Correspondence notifying Drs. Datta and Rai of final University action;
. Vita;
. P102;
. Annual Statement of Work Assignment;
. Summary Information Sheet;
. Publications;
. Minimum Criteria for Tenure/ Promotion and Tenure Triptych Information;
. Log Sheet for Promotion and Tenure/ Binder Requirements for Promotions, Tenure, and Periodic Career Review
. List of Internal and External Evaluators;
. Ballot summaries (containing no identifiers).
We affirm the University's decision to withhold:
. Peer Evaluation Forms;
. Letters of evaluation submitted by internal and external evaluators;
. Drs. Datta and Rai's Personal Statements;
. Summative Teaching Evaluation Forms.
These evaluative records are protected from disclosure to the public generally pursuant to KRS 61.878(1)(a) and (j). However, pursuant to KRS 61.878(3), Dr. Parrish is entitled to inspect and copy any of these otherwise protected records that contain his name or are authored by him. Our analysis is grounded in the laws governing access to public records under the Open Records Act and not in the principles of academia. Because the University of Louisville is a public agency its records are governed by the Open Records Act and we believe the Act compels this result.
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 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 There appears to be a discrepancy between the number of emails the University states that it withheld and the number of emails submitted to this office pursuant to KRS 61.880(2)(c) for in camera inspection.
3 KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
This provision contemplates agency production of records so voluminous that it imposes an unreasonable burden on the agency. It does not contemplate agency production of nine documents and a written explanation generally describing the records withheld and the statutory basis for the withholding. The University's indirect reference to KRS 61.872(6) was therefore inappropriate and legally unpersuasive in this context.
4 We will not belabor the issue of procedural noncompliance. The University acknowledges delays in responding to Dr. Parrish's request and in the production of responsive records. Its failure to comply with the requirements of KRS 61.880(1) constituted a violation of the Open Records Act.
5 KRS 61.878(3) provides, in full:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
6 KRS 61.878(4) states:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
7 This office was unable to locate a P103 during its in camera review of the triptychs, but did locate a P102.