Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Hopkins County-Madisonville Public Library Board violated the Kentucky Open Records Act in partially denying the October 3, 2011, request of LaMar Bryan, Lead Reporter for The Messenger , for a copy of Library Director Lisa Wiggly's current job description, 2010 and 2011 job performance evaluations, 2011 "paperwork outlining job performance expectations that the board/personnel committee either plans to give or has already given to" her, and "any written reprimands and/or disciplinary actions that the board may have taken against [her] during the past five years, dating back to 2006." Mr. Bryan referred the Board to Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006). In a timely written response, the Board advised Mr. Bryan that it would provide him with a copy of the Director's current job description and the requested job performance expectations "as soon as the board has completed these documents." 1 However, the Board declined to provide "any documentation regarding performance evaluations or disciplinary action taken against any employee, since these documents are exempt from disclosure under [KRS 61.878(1)(a)]." 2 In support of its position, the Board referred Mr. Bryan to case law 3 predating Cape Publications , above, which remains valid but contains the standard privacy analysis, and "a long line of Attorney General opinions including OAG 79-128, OAG 79-348, OAG 80-58, and OAG 82-204," also predating Cape Publications but referenced therein, which recognize that maintaining 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. " The Board noted that performance evaluations "may contain a great deal of personal information" and essentially attempted to distinguish Cape Publications , noting that it "involved the performance evaluation of a public agency employee who committed a criminal act in the course" of his duties, thereby forfeiting his privacy interest.
Applying the case-by-case analysis required under Cape Publications , above, the controlling precedent on the issue of public access to public employee performance evaluations, the Attorney General concludes that portions of the requested evaluation which "would shed light on the operation of the public agency" must be disclosed consistent therewith; however, the Board may redact "truly personal information" contained therein prior to doing so. Any responsive "written reprimands or disciplinary actions" must also be disclosed consistent with existing legal authority. In withholding the requested evaluations and the "written reprimands and disciplinary actions" in their entirety, however, the Board violated the Open Records Act.
On appeal Mr. Bryan asserted that a "heightened public interest in the library's management" exists. Specifically, he explained that earlier this year, "the Madisonville City Council reduced its funding for the library by $ 100,000, with a councilman publicly questioning the library's fiscal management." Accordingly, the Board is "planning to give the longtime library director a written list of job expectations, followed by a performance evaluation. " In responding to Mr. Bryan's appeal, Board President Marcella Davis essentially reiterated the agency's initial response. Neither Ms. Davis nor the Hopkins County Attorney, both of whom received notifications of this appeal, chose to directly address The Messenger's assertion that a public interest superior to that of the privacy interests of the Library Director exists on the facts presented.
Although the Library Director is the head of the agency, the Hopkins County-Madisonville Public Library, 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, " 4 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. However, the Court also recognized, consistent with prior decisions by this office, that "[t]he 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. " Id. at 13. In light of Cape Publications, the Attorney General 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 that case, 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.
Although the record on appeal is devoid of any suggestion that the Library Director committed a crime or engaged in misconduct resulting in a total forfeiture of her privacy interests, or that she supervised a person who committed a crime or engaged in misconduct, the fact remains that evidence has been presented which elevate the public's right to scrutinize how she was evaluated in her supervisory role. See 09-ORD-113 (holding that Kentucky Community & Technical College System violated Act in redacting certain portions of the 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, which her evaluation "may provide more insight into"); 09-ORD-180; 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); 09-ORD-150 (affirming denial of request for Dog Warden's evaluation due to "absence of any specific facts indicative of a public interest in disclosure" that outweighed the privacy interest of the individual evaluated).
The unrefuted facts of record establish that the Board reduced the Library's funding by $ 100,000.00 and that one councilman publicly questioned the fiscal management of the Library, actions which prompted the Board to prepare specific job expectations for the Director and follow that with a performance evaluation, the implication being that proper management of the funding designated for the Library is a duty of the Director and closer scrutiny of her performance to ensure accountability is warranted. As the Court did in Cape Publications , "we believe that in this case redaction is the best solution." Id. at 14. This method will enable the Board to "keep truly personal information private (appearance, grooming habits, and the like), the disclosure of which would serve no public interest but potentially embarrass the person who is the subject of the evaluation, while disclosing information about the employee's job performance that would shed light on the operation of the agency." Id.
Although Cape Publications involved a Parks Department employee who "commit[ted] a criminal act made possible by his position in a public agency, " contrary to the Board's implicit argument, the Court expressly declined to establish "a bright-line rule permitting disclosure" only in cases where the public employee who was the subject of the evaluation committed a criminal act facilitated by his or her position. 10-ORD-163, p. 3. Rather, the Court examined the extent to which the public employee "forfeited his privacy interest, and the public interest in the details of the operation of a public agency could be advanced by the disclosure of non-personal information contained in the evaluation." Id. at 14. For this reason, the Board's argument that disclosing any of the Director's evaluation would constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a) is both unpersuasive and contrary to existing law. The facts presented are not as detailed or compelling as those which culminated in Cape Publications or even 09-ORD-113, and the question is therefore a closer one; however, the fact that she has not "engaged in a crime or misconduct as a result of [her] position" is by no means dispositive of the question presented. 10-ORD-163, p. 3. Such a "bright-line rule[] permitting or exempting disclosure [is] at odds with controlling precedent." Id. Accordingly, this office finds that the Board violated the Act in withholding the Director's evaluation in its entirety, and that per KRS 61.878(4), 5 it must provide Mr. Ryan with any portions that relate to her job performance but do not contain "truly personal information. "
Given this determination, the remaining question is whether the Board was authorized to withhold any "written reprimands or disciplinary actions" on the basis of KRS 61.878(1)(a). The Board's blanket denial is contrary to existing law. In 03-ORD-012, 6 this office held that the Berea Independent School District had improperly denied a request for the complete personnel records of named employees on the basis of KRS 61.878(1)(a). Reasoning that "a request for access to a personnel file requires no greater degree of specificity than any other open records request," the Attorney General concluded that the agency must "determine what is and is not subject to Open Records." Id., p. 7; 08-ORD-175. More specifically, the "agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, [c]ite the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld" pursuant to KRS 61.878(4). Id. See 07-ORD-192.
As the Attorney General has frequently observed, there is ample authority to guide a public agency in making this determination. Quoting extensively from 97-ORD-66, the Attorney General held in 03-ORD-012 as follows:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's [resume] reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. . . . In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. . . . Letters of resignation submitted by public employees have also been characterized as open records.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. . . . Such matters are unrelated to the performance of public employment.
03-ORD-012, p. 8, citing 97-ORD-66, p. 5; 03-ORD-213. 7
"These opinions are premised on the idea that a person does not typically work, or attend school, in secret, and therefore the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment. " 93-ORD-32, p. 3; 00-ORD-090. In other words, the "privacy rights of the public employee extend only to matters which are not related to the performance of his [or her] work." OAG 80-43, p. 3. Numerous decisions of this office and the courts recognize that "[t]he unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment," Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing KRS 61.871, and this principle of law has regularly been applied to documents reflecting disciplinary actions imposed on public agency employees. See, e.g., Palmer v. Driggers, 60 S.W.3d 51 (Ky. App. 2001) (complaint against police officer); 95-ORD-47 (complaints against school teacher). See also 04-ORD-251; 07-ORD-192.
Because any existing responsive documents may contain both excepted and nonexcepted material, the Board is permitted to redact any excepted material, but is required to make any nonexcepted material available for inspection or copying after the Board identifies the material being withheld, and then articulates, in writing, the statutory basis for withholding the excepted material per KRS 61.878(4) and KRS 61.880(1). See 08-ORD-175. The Board's blanket denial of Mr. Bryan's request for the Director's performance evaluation, and written reprimands and disciplinary actions, if any, on the basis of KRS 61.878(1)(a) is not supported by existing legal authority.
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.
Distributed to:
LaMar BryanMarcella DavisJ. Todd P'Pool
Footnotes
Footnotes
1 The Board could not provide nonexistent documents nor was it required to "prove a negative" in order to refute a claim that such records currently existed under the rule announced in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005). Because the record on appeal is unclear as to whether such documents have actually been produced as of this date, the Attorney General must assume that the Board either has or will provide Mr. Bryan with the job description and performance expectations for Directory Wiggly promptly upon their completion; accordingly, the related issues are moot per 40 KAR 1:030, Section 6.
2 The record is unclear as to whether any written reprimands or disciplinary actions exist. In this regard, the Board's response was deficient. See 09-ORD-145. Because the Board did not cite any basis for denial except KRS 61.878(1)(a), this office does not address the potential applicability of any other statutory exceptions.
3 Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992; Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994); and Lexington-Fayette Urban County Government v. Lexington-Herald Leader Co., 941 S.W.2d 469 (Ky. 1997).
4 Noting that none of the prior judicial opinions applyingKRS 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.
5 KRS 61.878(4) provides: "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 inspection."
6 In 03-ORD-213, the Attorney General relied on 03-ORD-012 in disputing the agency's characterization of all information contained in personnel files except for disciplinary records as "personal." Likewise, this office cannot uphold the blanket denial which prompted the instant appeal.
7 A public employee's date of birth may also generally be withheld per KRS 61.878(1)(a). See 07-ORD-141; 04-ORD-143. Likewise, the Attorney General has recognized that home telephone numbers are protected under KRS 61.878(1)(a). See 00-ORD-97.