Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Hopkinsville Police Department violated the Kentucky Open Records Act in its disposition of attorney Krista A. Dolan's January 17, 2013, request for personnel records relating to three police officers. For the following reasons, we conclude that the Department did not violate the Act.
Ms. Dolan requested a copy of records relating to evidence in the murder conviction of Charles Bussell, as well as "all personnel records for Mary Martins, Terry Sanders and Kenneth Over," retired officers of the Hopkinsville Police Department who had worked on the Bussell case. The request was made in connection with Mr. Bussell's pending motion for post-conviction relief. On January 23, 2013, Hopkinsville City Clerk Christine F. Upton replied to the request. The portion of her letter pertinent to this appeal stated:
Pursuant to KRS 61.878(1)(a) certain personal information where the privacy of individuals outweighs the public interest served by disclosure will be redacted. This includes home addresses, telephone numbers, social security numbers, driver's license numbers, gender, race, marital status, and religion. Additionally, pursuant to KRS 61.878(1)(a), employee evaluations, personal financial records, and personal benefit information will not been [ sic ] provided. Further, pursuant to KRS 61.878(1)(a) and 61.878 (1)(k) medical records will not be provided. Lastly, preliminary notes will not be provided pursuant to KRS 61.878(1)(i).
In her appeal dated February 15, 2013, Ms. Dolan takes issue solely with the denial of the employee evaluations.
KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In 1992, the Kentucky Supreme Court established a standard by which we judge the propriety of a public agency's reliance on KRS 61.878(1)(a) as a basis for denying access to public records. At pages 327 and 328 of
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Court articulated the following standard:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
The Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity . . . ." Id.
In a subsequent analysis of the privacy exemption, the Court of Appeals refined this standard.
Zink v. Com., Dept. of Workers' Claims, 902 S.W.2d 825 (Ky.App. 1994). At page 828 of that opinion, the court discussed its "mode of decision":
[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. [ Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
In the context of public employees' performance evaluations, the privacy interests are well established.
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.
Cape Publications v. City of Louisville, 191 S.W.3d 10, 13 (Ky. App. 2006) (emphasis added). The Court of Appeals in Cape Publications ultimately found that where a local parks department employee was charged with "committing a criminal act made possible by his position at a public agency," which also led to the administrative suspension and eventual resignation of his supervisor, both his evaluations and his supervisor's were subject to disclosure to a newspaper under this high standard. Id. at 14.
As the court stressed in Cape Publications, the balance of interests between privacy and disclosure depends upon the facts of each case, and "bright-line rules permitting or exempting disclosure are at odds with established precedent." Id. Thus, for example, the fact that a public employee may be the head of an agency is not "dispositive standing alone." 11-ORD-190; 09-ORD-150. Facts must be presented "that would support a claim of a superior public interest in the ? evaluation that would override [the employee's] long-recognized privacy interest in that record." 07-ORD-125.
Accordingly, where there was no "proof that [a school] 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 how he was evaluated in his supervisory role," there was no "superior public interest" in disclosing his evaluation to a newspaper. Id. On the other hand, where a public library director's fiscal management was publicly questioned by a city councilman and the council reduced the library's funding by $ 100,000, with the library board imposing a written list of job expectations for the director, followed by a performance evaluation, we found that these facts "elevate[d] the public's right to scrutinize how she was evaluated in her supervisory role" and warranted disclosure of the evaluation to a newspaper. 11-ORD-190.
In 10-ORD-163, we required disclosure to a newspaper of the evaluation of an employee who had "'gone public' relative to her criticisms of staff problems within the agency that employ[ed] her," by filing a complaint through the Office of the Governor, and had filed a grievance "based on her belief that comments in her evaluation were retaliatory." We found that she had "willingly forfeited her privacy interest in her grievance and the evaluation that gave rise to it," noting that the agency's withholding of the document was not at her request. Id. Yet when that employee herself requested a copy of another employee's evaluation, we found no waiver of privacy on that employee's part, nor any showing of an overriding public interest that outweighed the privacy interests attached to the other employee's evaluation. 10-ORD-096.
In her letter of appeal, Ms. Dolan argues the following facts as either effecting a forfeiture of the officers' privacy interests in their evaluations or creating an overriding public interest in disclosure:
1. Mary Martins and Terry Sanders initiated lawsuits against the City of Hopkinsville. In these suits there were allegations of discriminatory practices in promotions within the department. The performance evaluations directly speak to this issue. ? By filing these lawsuits, the officers put their performance into the spotlight, thus forfeiting, albeit limitedly, their privacy interests.
2. There have been lawsuits against Mary Martins and Terry Sanders alleging misconduct, as well as allegation of "produc[ing] and manufactur[ing]" false evidence. ? How those allegations were dealt with by supervisors is a matter of public concern and would be reflected in the performance evaluations. ?
3. Mary Martins, Terry Sanders and Kenneth Over were all high-ranking officials within the Hopkinsville Police Department. Mary Martins and Terry Sanders were both majors with the HPD before retirement. Kenneth Over was the Chief of Police. The Attorney General has stated that 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. " ?
Hopkinsville City Attorney H. Douglas Willen responded to the appeal on February 22, 2013, reiterating the argument made under KRS 61.878(1)(a) .
With regard to the first argument made by Ms. Dolan, we do not believe it has been shown that Officers Martin and Sanders forfeited a privacy interest in their evaluations by simply filing a civil action alleging discriminatory practices. While it is not inconceivable that performance evaluations might eventually be used as evidence in this type of lawsuit, we are unaware that this ever in fact occurred. Furthermore, this is not a situation where, as in 10-ORD-163, an employee directly put her evaluation in issue by "go[ing] public" with a grievance about the evaluation itself.
As to the second argument, we do not see the alleged "lawsuits against Mary Martins and Terry Sanders" as creating an overriding interest in public disclosure of their evaluations. The only such lawsuit cited by Ms. Dolan was an action filed by her present client, Charles Bussell, which was dismissed on summary judgment.
Bussell v. Martins, 69 F.3d 537 (6th Cir. 1995) (unpublished opinion). This private suit by Mr. Bussell does not rise to the level of criminal charges or suspected official misconduct at issue in Cape Publications or 11-ORD-190.
Regarding the third argument, in a follow-up response dated March 12, 2013, City Attorney Willen clarified that Kenneth Over served as Chief of the Hopkinsville Police Department between 2000 and 2003, but "there are no reviews or evaluations of Officer Over during his time as Police Chief." Therefore, we are not concerned here with the performance evaluation of an agency head. Under normal circumstances, "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, supra, 191 S.W.3d at 13.
In balancing the competing interests, we recall that the court in Cape Publications recognized two privacy interests involved in performance evaluations: the presence of "personal information" and the need for evaluators to "speak more frankly" about employees in an effort to improve performance. Id. On the other side, the public interest in disclosure which undergirds the Open Records Act is based on "the citizens' right to be informed as to what their government is doing." Zink, supra, 902 S.W.2d at 829.
In every decision cited above which ordered disclosure of performance evaluations, the request had been made by a newspaper. This is relevant to the question of whether disclosure would serve the public interest described in Zink. The request in this case, by contrast, is solely for the interest of Mr. Bussell in searching for new evidence to use in his latest RCr 11.42 motion. 1 This is not a request by a news organization, intended to shine a public light on the workings of government, but rather one being used as a litigation tool for private purposes. In view of all the circumstances, therefore, we conclude that the disclosure of the retired officers' performance evaluations would not significantly further the purpose of the Open Records Act and no overriding public interest has been shown to defeat the recognized privacy interests. Accordingly, we find no violation of the Act.
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:
Krista A. Dolan, Esq.Christine F. Upton, MMCH. Douglas Willen, Esq.
Footnotes
Footnotes
1 Ms. Dolan states that Mr. Bussell filed a previous RCr 11.42 motion in 1994 "based on, among other things, Brady [v. Maryland, 373 U.S. 83 (1963)] violations and ineffective assistance of counsel," which won him a second trial. Com. v. Bussell, 226 S.W.3d 96 (Ky. 2007). His present motion was filed over a year after the conviction at his third trial was affirmed by the Supreme Court of Kentucky in 2011.