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 Justice and Public Safety Cabinet - Department of Criminal Justice Training, violated the Kentucky Open Records Act in partially denying Courier-Journal Staff Writer Joseph Lord's November 4, 2011, request for "access [to] and copies of documents pertaining to the enrollment of [Constable] David Whitlock, . . . , of Louisville," and specifically, the "names of criminal justice classes under the Kentucky Department of Criminal Justice Training in which Whitlock has enrolled, including when his enrollment began," 1 "information regarding whether Mr. Whitlock successfully completed" those classes, and "any certification or similar mark of completion that Mr. Whitlock may have received." Later that day, the Department provided Mr. Lord with "a copy of Constable Whitlock's training transcript which shows courses that he has attended at the [Department] and the number of hours of those courses." Generally referencing "past open records decisions" holding that "test scores and examination results should not be released," the Department withheld information regarding whether Constable Whitlock successfully completed the courses, and certifications "or marks of completion" on the basis of KRS 61.878(1)(a). In response to Mr. Lord's appeal challenging that denial, Assistant General Counsel Stephen D. Lynn advised that the Department's response "was based upon our understanding of past decisions rendered by the Office of the Attorney General regarding the release of test grades." 2 Based upon the following, this office agrees, consistent with prior decisions, that KRS 61.878(1)(a) authorized the withholding of Constable Whitlock's test scores, which Mr. Lord did not request; 3 however, the public is entitled to know whether Constable Whitlock, a publicly elected official, successfully completed professional development courses which relate to his duties, and the Department erred in withholding any responsive certification or existing record(s) containing such information.
In resolving the question presented, our analysis must be guided by the legislative statement of policy codified at KRS 61.871, declaring 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," as well as the judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. " Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). As the Kentucky Supreme Court has emphasized, the "unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure 'may cause inconvenience or embarrassment to public officials or others.'" Beckham v. Board of Education of Jefferson County, 873 S.W.2d, 575, 577 (Ky. 1994), citing KRS 61.871. Despite this "manifest intention to enact a disclosure statute," however, the General Assembly has mandated that certain records are not open for public inspection. Among those records excluded from application of the Act in the absence of a court order are public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a). When denying access to public records under this exception, as the Department did here, just as with any other, the public agency has the burden of proof. KRS 61.880(2)(c).
In Kentucky Board of Examiners , above, the Kentucky Supreme Court established the standard by which this office must determine whether a public agency has properly relied on KRS 61.878(1)(a) as the basis for denying access to public records. Recognizing the Act "exhibits a general bias favoring disclosure, " the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. The determination of whether a public agency has properly relied upon KRS 61.878(1)(a) necessarily turns on whether the offense to personal privacy that would result from disclosure of the information contained therein outweighs the benefit to the public, and is an "intrinsically situational" determination that can only be made within a "specific context." Id. However, the "clearly unwarranted" standard "tips the scales in favor of disclosure. " 03-ORD-084, p. 4.
As indicated, the public's "right to know" under the Act is premised upon the right of the public to expect its agencies to properly execute their statutory functions. Kentucky Bd. of Examiners, above, at 328. Generally speaking, inspection of public records 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, the Court of Appeals refined the standard of Kentucky Board of Examiners in Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994). In discussing its "mode of decision," the Court of Appeals observed:
[O]ur analysis begins with a determination of whether the subject information is of a 'personal nature.' If we find that it is, we must then determine whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy. ' This latter determination entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [ Kentucky Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
In determining whether an invasion of personal privacy was "clearly unwarranted" on the facts presented in Zink , above, the Court emphasized that its "analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request." Id. at 828. Rather, the only relevant public interest considered "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Id. at 829.
Having engaged in a "comparative weighing of antagonistic interests," the Court determined that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying the requester access to personal information contained in the injury report forms submitted by private citizens, including marital status, number of dependents, wage rate, social security number, telephone number, and home address. In so doing, the Court reasoned that the " relevant public interest supporting disclosure in [that] instance [was] nominal at best," and the dissemination of unsolicited information to injured workers might serve the "broad public interest" by educating injured workers through dissemination of unsolicited information regarding their legal rights under the workers' compensation statutes, but "[could not ] be said to further the principal purpose of the Open Records Act ." Id. at 829 (emphasis added). Accordingly, the substantial privacy interests of the injured employees in such personal information outweighed the "negligible Open Records Act related public interest in disclosure. " Id. Inasmuch as the relevant public interest is paramount here, and the disclosure of the requested information would further the principal purpose of the Act, Zink is distinguishable from the instant appeal.
More recently, the Court of Appeals reiterated that "bright-line rules permitting or exempting disclosure [of public records] are at odds with controlling precedent." Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006). In City of Louisville , the Court of Appeals focused on the "case-by-case analysis required by the outstanding law on the Open Records Act, " and, in particular, KRS 61.878(1)(a), in determining that the public's interest in the performance evaluations of two Parks Department employees, one who committed a criminal act "made possible by his position in a public agency, " and the other, that employee's supervisor, outweighed the employees' privacy interests in the work-related content of their evaluations. Id. 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, observing that the Attorney General had long recognized the superior privacy interests of public employees in their evaluations but rejecting this position in favor of a "case-by-case analysis." Applying this "case-by-case analysis" of the competing interests presented in the instant appeal compels a result which is contrary to the Department's position.
In 03-ORD-012, 4 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. 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 relevant part, 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.
03-ORD-012, p. 8, citing 97-ORD-66, p. 5 (emphasis added); 03-ORD-213. 5
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 , above, at 577, 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.
The Department was correct in asserting that prior decisions of this office have recognized that a public employee "has a cognizable privacy interest in test scores and examination results when those scores or results are disclosed in conjunction with the employee's name or other personally identifiable information." 99-ORD-113, p. 2; OAG 78-382 (affirming denial of request for "merit system examination scores of certain individuals" on basis of KRS 61.878(1)(a)); 92-ORD-1238 (holding that Kentucky Real Estate Commission was authorized to withhold some data of a personal nature from a real estate broker's license application, such as social security number, home address, etc., and including test scores, but could not withhold information relating to his or her educational qualifications and work experience ); 96-ORD-45 (reaffirming privacy interest of applicant for public employment in test scores absent a superior public interest on basis of KRS 61.878(1)(a)). Inasmuch as Mr. Lord did not ask for Constable Whitlock's test scores/ examination results, the foregoing line of decisions, which also predates Cape Publications , above, is distinguishable rather than controlling. Our holding today does not alter the validity of these decisions. 6
The Attorney General recently noted, in holding that decisions affirming the denial of access to records of applicants for public employment per KRS 61.878(1)(a) were not dispositive as to records of applicants seeking appointment to a vacant elective office, that public interest in the identities of persons seeking appointment to elective office "is often greater than that of the public interest in the identities of persons seeking public employment. " 11-ORD-046, p. 4. "Although public employees serve the public," this office reasoned, "they do not represent the public in the manner of an elected official, and the public's interest in them is, in general, reduced. Nor do they answer to the public at the voting booth on election day and undergo routine public scrutiny." Id. (Original emphasis.) This reasoning logically applies with equal, if not greater force, relative to persons running for public office and those already serving as publicly elected officials. Just as persons who submitted their resumes for consideration to fill the Mayor's vacant seat in that decision "forfeited a greater measure of their personal privacy when they 'threw their hats in the ring,'" so, too, do persons elected to public office such as Constable Whitlock. Id., p. 5.
A Constable is an elected public official, 7 and "one of the only two remaining elected peace officers in the world." http://www.kentuckyconstableassocation.org/History. 8 Section 99 of the Kentucky Constitution provides that "in each Justice's District one Justice of the Peace and one Constable, " among other public officials, must be elected. Pursuant to Section 101, constables "shall possess the same qualifications as Sheriffs, and their jurisdictions shall be co-extensive with the counties in which they reside." Constables must be twenty-four (24) years of age, a citizen of the state for two years and a resident of the county and district one year prior to the election. Kentucky Constitution, § 100. Before taking office, a constable must execute a bond at a minimum amount of $ 10,000, approved by the fiscal court. Pursuant to KRS 446.010(25), the sheriff and three other elected county officials - coroners, jailers and constables - are "peace officers," possessing law enforcement powers including the authority to make an arrest under the circumstances outlined in KRS 431.005. Constables may also "execute warrants, summons, subpoenas, attachments, notices, rules and orders of court in all criminal, penal and civil cases . . ." KRS 70.350(1). Finally, constables are specifically identified as being among the officers which "shall be exempted from the certification requirements [codified at KRS 15.380 to 15.404] but may upon their request be certified by the council[.]" 9 KRS 15.380(5)(c).
Inasmuch as Constable Whitlock, a publicly elected official, enrolled in classes which related to his work and were intended to better qualify him to discharge his duties, the public is entitled to know whether he successfully completed those classes. 10 The "privacy rights of the public employee [or publicly elected official] extend only to matters which are not related to the performance of his [or her] work." OAG 80-43, p. 3. That his successful completion of the classes taken "is not directly related to a specific job qualification . . . does not alter our analysis." 00-ORD-137, p. 2.
Further support for this conclusion exists in the instant appeal. Information available in the public domain reveals that Constable Whitlock is currently the subject of a Louisville Metro Police Department Public Integrity Unit investigation as a result of shooting a suspected shoplifter in a Wal-mart parking lot in south Louisville in early November. http://whas11.com/news. "[W]hen an individual enters on the public way, breaks a law, or inflicts a tort on his fellow man he forfeits hisprivacy to a certain extent." Zink v. Commonwealth, Dept. of Workers' Claims, 902 S.W.2d 825, 828 (Ky. App. 1994). Our holding does not rest exclusively or primarily on this recent incident, or the resulting investigation underway, nor has Constable Whitlock been charged with, or convicted of a crime as of now apparently. 11 However, the situation does further illustrate why the public interest in disclosure of information relating to qualifications of a publicly elected official, including his successful completion of professional development or in-service training classes, or any certification (s) received, outweighs that of the public official's minimal privacy interest in this limited type of information (as compared to private information such as home address or test scores) , which is clearly "related to the performance of his work."
Based upon the foregoing, this office finds that the Department improperly withheld any existing records containing information regarding whether Constable Whitlock successfully completed the classes in which he was enrolled, as well as the certification (s) received, if any, on the basis of KRS 61.878(1)(a). 12 Our holding today, as in all decisions involving application of KRS 61.878(1)(a), requiring a "comparative weighing of antagonistic interests," is restricted to its particular facts.
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:
Joseph LordSusan E. HigginsSteve Lynn
Footnotes
Footnotes
1 This office has long recognized that a "public agency" is not statutorily required to create a record or compile information to comply with a request under the Act. However, in lieu of doing so a public agency must provide the requester with an opportunity to inspect existing non-exempt records which may contain the information being sought. See 09-ORD-145, pp. 8-9. Because the Department did not raise this issue, nor has it denied the existence of responsive documents, further discussion is unwarranted.
2 The Department, which is located at Eastern Kentucky University, did not raise any issues regarding the potential applicability of the Family Educational Rights and Privacy Act of 1974 (FERPA), presumably because FERPA is not implicated on the facts presented.
3 Mr. Lynn advised that the Department "stands ready to comply with any decision" made by this office regarding the instant appeal.
4 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."
5 Conversely, this office has upheld 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. 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. See 00-ORD-97.
6 In any event, none of these decisions established a blanket rule of nondisclosure, but instead affirmed the denials of requests for test scores "in the absence of a superior public interest. "
7 Because the record on appeal was devoid of any factual background, this office endeavored to independently locate relevant and publicly available information for the purpose of better understanding the context in which the question presented arose.
8 The website contains a Statement of Common Purpose which provides:
The purpose of the Kentucky Constable is to uphold the law fairly and firmly: to prevent crime, to pursue and bring to justice those who break the law; to keep the peace; to protect, help and reassure the community; and to be seen to do all this with integrity, common sense and sound judgment.
9 Pursuant to KRS 15.310(5), "Council" means "Kentucky Law Enforcement Council established by KRS 15.315 to 15.510, 15.990, and 15.992[.]" KRS 15.310(1) defines "Basic training course" as "the peace officer or court security officer training course provided by the Department for Criminal Justice Training or a course approved and recognized by the [Council.]" "Certification" is defined as "the act by the council of issuing certification to a peace officer or court security officer who successfully completes the training requirements pursuant to KRS 15.404 and the requirements set forth within this chapter."
10 Specifically, the courses identified were Basic Officer Skills (July 2008), Media Relations for Supervisors (February 2008), Legal Update: Constitutional Procedure (December 2007), and Legal Update: Penal Code (November 2007). The Department has clarified that, with the exception of the Media Relations class, an in-service training course offered at the time, said classes are generally taken by a police officer who has been to basic training and is returning to police work after being out for a few years. They are intended to be "refresher" courses in other words. To become a certified peace officer, the Department further advised, a person must comply with KRS 15.382 and complete the 18 week law enforcement training course established in 503 KAR 1:110.
11 At its meeting on November 30, 2011, the Louisville Metro Public Safety Committee voted unanimously to place tighter restrictions on constables in light of this incident. Questions have been raised about Constable Whitlock's use of force and his decision to deputize staff. Earlier this month, the Louisville Metro Council passed a non-binding measure asking the Jefferson County Commonwealth's Attorney to investigate and possibly indict Constable Whitlock for malfeasance. The Metro Police Public Integrity Unit is currently investigating his use of force and the Commonwealth's Attorney is waiting on a full report before deciding how to proceed. See http://www.wfpl.org/2011/11/30/.
12 Pursuant to KRS 61.878(4), the Department may, of course, redact information such as Constable Whitlock's social security number in accordance with KRS 61.878(1)(a). See note 5, above.