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 Elsmere Fire Protection District violated the Kentucky Open Records Act in the disposition of Terry Whittaker's March 27, 2013, request directed to Chief Paul LaFontaine. Ms. Whittaker asked to inspect "agency rules and regulations as they pertain to the Open Records Act, " minutes of the District's Board of Trustees' meetings for the past ten (10) years, "signatory of [sic] proof of receipt of distribution materials pursuant to the Open Records /Meetings Acts and records management for all current officials/board members and officials who served in the past 6 years," 1 a recording of the Board's March 26, 2013, meeting "which was started, ended and removed from the meeting room by Ms. LaFontaine," the personnel file of "Regis Hoots [sp] whose resignation and pending litigation [were] the subject of a public discussion following a [T]rustees meeting in March 2012 by Mr. Stegman and Mr. Sheehan . . . ," "public records, personnel and accounting, pertaining to grant monies received from government agencies, expended by the [D]istrict or returned by personnel, whether by check or time worked, compensating the [F]ire [D]istrict for failure to meet [its] contractual obligation," and "contractual agreements of [D]istrict employees who received training through grants during the past 10 years." By letter dated March 29, 2013, Steven C. Martin, legal counsel for the District, confirmed receipt of Ms. Whittaker's request for "voluminous documents." Mr. Martin advised that "we are working on a response. Given the breadth of your request and the holiday, I will be contacting you during the first week of April" with a response.
By letter dated April 3, 2013, Ms. Whittaker confirmed receipt of Mr. Martin's March 29 response on behalf of the District. Ms. Whittaker advised that upon visiting the District's office that day, she noticed a copy of the Open Records Policy displayed on the award case across from the clerk's office. Because "office hours and contact information" were not provided in the policy or posted in the lobby, Ms. Whittaker noted, she again submitted her written request via fax using the number provided on his law firm's letterhead, "expounding and clarifying" her March 27 request. Ms. Whittaker asked to inspect minutes of the Board meeting "that is purported by the Open Records Policy to have occurred in August 2000," the personnel files of six other named employees in addition to Mr. Huth's, "the grant and any pay adjustments associated with the National Paramedic Certification referenced on the District's website under the Achievements tab" for the named employees, and the "contractual agreements by and between" the District and those employees, "individually or collectively, for training received since 2009." Having received no further communication from Mr. Martin, verbal or written, she initiated this appeal by letter dated April 10, 2013, enclosing a copy of the District's "newly posted" Open Records Policy and correctly noting that said Policy lacks the address, telephone number, fax number, and hours of operation for the District.
Upon receiving notification of Ms. Whittaker's appeal from this office, Mr. Martin elaborated upon the District's position. Having explained the agency's basis for questioning the motivation and timing of Ms. Whittaker's "expansive and unduly burdensome" March 27 request, submitted on the morning after the Board's March 26, 2013, closed session, Mr. Martin emphatically stated his "opinion that personnel files are not subject to being disclosed under the Open Records Act. " He noted that Ms. Whittaker ultimately requested not only the personnel file of a party "that is publicly involved in litigation with the" District, but also personnel records "that may or may not have been identified during the executive session." All requests for personnel files, Mr. Martin reiterated, "will be objected to at this point awaiting further guidance from the Attorney General's office." However, the District agreed to make all of the records being sought available 2 to Ms. Whittaker, notwithstanding its continuing objections and concerns, with the exception of the KRS 15.257 signatory proof of receipt for all current officials/Board members and those who served in the past six years, in response to which it merely agreed to provide a list of current Board members and those who have served in the past six years without explanation (see note 1), and the requested personnel files; therefore, any related issues justiciable in this forum have been rendered moot per 40 KAR 1:030, Section 6. 3 Our substantive analysis will focus on the accessibility of those personnel files and the deficiencies of the "Open Requests policy," i.e., rules and regulations adopted per KRS 61.876(1), 4 apparently "posted in the station lobby per Ms. Whittaker's request," a copy of which Ms. Whittaker was provided.
Before resolving the substantive issues presented, this office is compelled to address the procedural deficiencies of the District's initial and supplemental responses. Although the District issued a written response to Ms. Whittaker's March 27 request within three business days per KRS 61.880(1), its response was otherwise deficient insofar as the agency failed to either provide her with access to all existing responsive documents within that period of time or cite the applicable statutory exception and briefly explain how it applied to any records being withheld. The District did not, in the alternative, expressly invoke KRS 61.872(5) 5 or provide a detailed explanation of the cause for delay in producing any existing responsive documents and the specific date on which the records would be made available. Rather, its March 29 letter merely advised Ms. Whittaker that the District was "working on a response" and would be contacting her "during the first week of April." Noticeably absent is any reference to KRS 61.872(5) . No explanation of the cause for delay was provided aside from a passing reference to how voluminous the request was, nor was the "earliest date on which the public records [would] be made available for inspection. " Even assuming the records being sought were "in active use, in storage or not otherwise available," the District failed to specify which of these permissible reasons for delay applied, if any. In the District's appeal response, it maintained that Ms. Whittaker's request was "expansive and unduly burdensome" and sought records that "were ONLY discussed in executive session," but did not otherwise justify its delay in providing access. Nor did the District invoke KRS 61.872(6) or attempt to satisfy the clear and convincing evidentiary standard of that exception.
Some delay may have been justified in order to comply with Ms. Whittaker's voluminous request; however, the District did not respond to Ms. Whittaker's April 3 request or supplement its original response until it received the notification of her appeal. 6 The District violated the Act from a procedural standpoint in failing to either provide Ms. Whittaker with timely access or properly invoke KRS 61.872(5) if appropriate. This office sees "nothing wrong with the [District's apparent] policy of processing open records requests through its legal department. In our view, this policy ensures uniformity and adherence to the law. 93-ORD-134. However, care must be taken that such a policy does not interfere with the timely processing of an open records request." 00-ORD-166, p. 4; 12-ORD-128. "'The value of information is partly a function of time.'
Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3; 10-ORD-201.
"Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence]," this office has long recognized, "it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3)." 00-ORD-10, pp. 10-11(citation omitted)(original emphasis). A "bare assertion" relative to the basis for denial . . . does not satisfy the burden of proof. . . .Id., p. 11. The District did not initially reference any of the statutory exceptions codified at KRS 61.878(1)(a)-(n) in responding to Ms. Whittaker's request, but implicitly relied upon KRS 61.878(1)(a) 7 in belatedly asserting that personnel files are "private and confidential and not subject to being disclosed." In failing to specify which of the statutory exceptions codified at KRS 61.878 it was relying upon as the basis for denial, both initially and on appeal, or provide a brief explanation of how that exception applied to such records, the District also committed a substantive violation of the Act. See 10-ORD-199; 12-ORD-105.
The next question turns on the requirements codified at KRS 61.876(1) and (2). Ms. Whittaker requested a copy of the rules and regulations presumably adopted in compliance therewith because apparently none were posted as of March 27. On appeal, the PVA did not choose to address Ms. Whittaker's claim regarding its apparent failure to comply with KRS 61.876(2) except to advise that a copy has been posted in the lobby "per Ms. Whittaker's request." As the Attorney General has long recognized, KRS 61.876(1) and (2) are:
. . . aimed at [ensuring] that each agency will educate the public on its particular policies and practices relative to open records. Simply stated, the rules and regulations contemplated by KRS 61.876 are a "how-to" for persons who wish to submit an open records request. [Footnote omitted.] . . . [Public agencies] must adopt rules and regulations pertaining to [their] open records polic[ies], or [they] may adapt the uniform rules and regulations promulgated by the Finance and Administration Cabinet to [their] particular needs. [They] must post these rules and regulations in a prominent location accessible to the public with the goal of broadly disseminating them. . . .
94-ORD-12, pp. 6-8; 98-ORD-200. Early on, this office held that KRS 61.876 requires each public agency to adopt rules pertaining to public records and to post same; failing to do so constitutes a violation of the Open Records Act. OAG 78-340. See 11-ORD-029 ("duty to adopt and post these rules and regulations is 'not a courtesy extended to the public' but a statutory requirement").
Because the "broadest possible dissemination" of a public agency's rules and regulations concerning access to public records is mandated by both the letter and the spirit of the Act, the District's apparent failure to comply with KRS 61.876(2) until Ms. Whittaker's request was a violation. Additionally, the copy of the "Open Records Policy" attached to Ms. Whittaker's appeal contains the "procedures to be followed in requesting public records" per KRS 61.876(1)(d), but does not contain the regular office hours of the agency per KRS 61.876(1)(a), the address of the official custodian per KRS 61.876(1)(b), or the specific fees (ten cents per page) charged for standard hard copies per KRS 61.876(1)(c), though it does indicate that fees charged will not "exceed the actual cost of reproduction." These omissions violated KRS 61.876(1).
In light of these determinations, the final question is whether the District erred in denying Ms. Whittaker's request for the personnel files of named public employees. The District's position is contrary to existing legal authority. "Neither the courts nor this office have determined that the contents of a public employee's personnel file are entirely shielded from disclosure by operation of KRS 61.878(1)(a)." 08-ORD-178, p. 3. Rather, this office has determined that only those records, or portions of records, in a public employee's personnel file that are unrelated to the performance of his or her public duties can be absolutely withheld under this exception. Id. "A generic determination that entire categories of records are excluded from the mandatory provisions of the Open Records Act does not satisfy the requirements of the Act." 97-ORD-41, p. 4; 11-ORD-108.
In 03-ORD-012 (departing from a line of decisions dating back to 1988), 8 the Attorney General 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). 9 Id. See 07-ORD-192; 08-ORD-175.
As the Attorney General has frequently observed, there is ample legal authority to guide a public agency in making this determination. Quoting extensively from 97-ORD-66, the Attorney General held:
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. Employee evaluations 10 have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90.
03-ORD-012, p. 8, citing 97-ORD-66, p. 5; 03-ORD-213. 11
"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. With the exception of evaluations of public employees, in other words, the "privacy rights of the public employee extend only to matters which are not related to the performance of his work." OAG 80-43, p. 3 (emphasis added). Because the requested files contain both excepted and nonexcepted material, the District is permitted to redact any excepted material, but is required to make any nonexcepted material available for inspection or copying after the District 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. "Neither the broad scope of the request nor the presence of litigation justifies the agency's blanket denial; likewise, KRS 61.878(1)(a) does not exclude a personnel file in its entirety from application of the Act." 08-ORD-170, p. 9.
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:
Terry WhittakerChief Paul LaFontaineSteven C. Martin
Footnotes
Footnotes
1 Ms. Whittaker was presumably referring to materials the Attorney General distributes, "together with the information required by KRS 171.223 to be prepared by the Department for Libraries and Archives concerning proper retention and management of records," in accordance with KRS 15.257 "within ninety (90) days of the effective date of any legislation amending the provisions of the Open Meetings Act or the Open Records Act." This provision requires distribution to "all county judge/executives, mayors, county attorneys, city attorneys, superintendents of public school districts, presidents of each of the state public postsecondary education institutions . . . , and attorneys of public school districts and public postsecondary institutions throughout Kentucky[.]"
Pursuant to KRS 65.055(1), county judge executives and mayors are required to distribute Your Duty Under the Law and Managing Government Records , either in hard copy form or electronically, "to each elected official and each member, whether elected or appointed, of every county and city legislative body," within sixty days of their election or appointment, including boards of special districts. KRS 65.055(2) requires county judge/executives and mayors to maintain signatory proof that each person identified at subsection (1) has received the written information. They "shall maintain documentation of receipt on file," and shall certify the distribution to the Attorney General. Accordingly, Ms. Whittaker's request for the proofs of receipt should have been directed to the Mayor; however, in order to discharge its duty under KRS 61.872(4) the District should have advised her accordingly. This office has not received the required certification of distribution from the Mayor. "Although not actionable under the Open Records Act, the City's apparent noncompliance with KRS 65.055 constitutes a separate but related statutory violation." 08-ORD-250, p. 5.
2 The District advised that all of the records could be "made available upon reasonable notice" at either Mr. Martin's office or the Elsmere Fire Department; however, the District is required to allow inspection "during the regular office hours of the public agency" per KRS 61.872(3). In construing this provision, the Attorney General has consistently recognized that "any attempt by a public agency to limit the period of time in which a requester may inspect public records places 'an unreasonable and illegal restriction' upon the requester's right of access." 02-ORD-094, p. 4 (citation omitted). The only recognized exception is when a public agency "has a very small complement of employees or restricted and irregular office hours," neither of which has been established here. Id. Under those circumstances, the Open Records Act contemplates that the public agency and the requester will agree upon a mutually convenient time and place for the requester to inspect public records. Id., pp. 4-5 (citation omitted). "In the interest of absolute clarity," this office reiterates that Ms. Whittaker "cannot be required to make an appointment to inspect the records, inasmuch as such a requirement could be interpreted as an illegal restriction on access, but may make such an appointment as a reasonable accommodation to the [District]." Id., p. 5.
3 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 03-ORD-087.
4 Pursuant to KRS 61.876:
(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to:
(a) The principal office of the public agency and its regular office hours;
(b) The title and address of the official custodian of the public agency's records;
(c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies;
(d) The procedures to be followed in requesting public records.
(2) Each public agency shall display a copy of tis rules and regulations pertaining to public records in a prominent location accessible to the public.
5 KRS 61.872(5) states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
6 Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve," the Attorney General has recognized, "will a determination of what is a 'reasonable time for inspection turn on the particular facts presented.' . . . In all other instances, 'timely access' . . . is defined as 'any time less than three days from agency receipt of the request.' [Citations omitted.]" 01-ORD-140, pp. 3-4.
7 In Kentucky Board of Examiners of Psychologists v. The Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992), the Kentucky Supreme Court established the standard under which this office must analyze the propriety of a public agency's reliance on KRS 61.878(1)(a) in denying access to public records, emphasizing that KRS 61.878(1)(a) contemplates a "case-specific approach." Shortly thereafter, the Court of Appeals refined this standard in Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), holding that a determination of whether disclosure "would constitute a clearly unwarranted invasion of personal privacy" involves a "comparative weighing of antagonistic interests." For a recent example of the fact-specific analysis required under KRS 61.878(1)(a), the parties may wish to review 11-ORD-210 (copy enclosed).
8 The Department of Corrections appealed the Attorney General's Open Records Decision, and in April 2008, the Kentucky Supreme Court affirmed our interpretation of KRS 61.872(2) in Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008). See 08-ORD-175.
9 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, the District's blanket denial was improper.
10 More recently, the Kentucky Court of Appeals affirmed the public's general right of access to personnel files of public agency employees and went one step further in requiring the disclosure of non-personal information contained in the performance evaluations of public employees when disclosure is warranted under the circumstances. Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006). The Court rejected a "bright-line rule completely permitting or completely excluding from public disclosure employees' performance evaluations" in favor of a case-by-case approach. Although this office is unaware of any unique circumstances warranting disclosure of non-personal information contained in the named employees' performance evaluations, the Court's holding signifies a judicial trend in favor of greater access; the position of the District is at odds with this trend. See 11-ORD-190 (copy enclosed).
11 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.