Opinion
Opinion By: Jack Conway, Attorney General; Ryan M. Halloran, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in partially denying Laura Hatfield's March 29, 2013, request for "[a] copy of [Eloise] Bailey's entire personnel file at the agency level to see what disciplinary action she has had during her career both before and after [Ms. Hatfield] complained about her...[and] what response, if any, her supervisors made to the many proofs [the Hatfields] offered of her perjury in court." We find that the Cabinet's response was only partially consistent with the requirements of the Act.
In its April 10, 2013, response, 1 the Cabinet agreed to release Ms. Bailey's personnel file to Ms. Hatfield upon receipt of prepayment for photocopies and postage, 2 but invoked KRS 61.878(1)(a) 3 in denying her access to: 1) Ms. Bailey's social security number; 2) Ms. Bailey's employee identification number; 3) Ms. Bailey's home address; 4) Ms. Bailey's home telephone number; 5) Ms. Bailey's personal characteristics; 6) Ms. Bailey's race and gender; 7) Ms. Bailey's date of birth; 8) Ms. Bailey's educational transcripts; 9) the addresses of Ms. Bailey's references; 10) "non-governmental salary and family information" relating to Ms. Bailey; 11) Ms. Bailey's medical information; and 12) documents relating to health and life insurance, benefits, and banking. In addition, the Cabinet cited OAG 77-394 for the proposition that "[p]erformance evaluations...are personal and private and not subject to disclosure."
Pursuant to KRS 61.880(2)(c) , 4 and to facilitate our review of the issues on appeal, this office requested that the Cabinet provide us with a copy of the redacted personnel file disclosed to Ms. Hatfield and a copy of the unredacted personnel file for a side by side comparison, and also provided us with "copies of complaints/correspondence sent by Laura Hatfield to various departments," indicating that they had "not been placed in the personnel file of Eloise Bailey." It was the Cabinet's position that "KRS 18A.020(2)(b) and (c) dictate what goes into a state employee's personnel file and none of the complaints/correspondence submitted by Ms. Hatfield meet the statutory standard."
Our review of the redacted version of the personnel file versus the unredacted version confirms several deficiencies. To begin, the records disclosed to Ms. Hatfield, consisting largely of executed boiler-plate agreements, position action forms, and job applications, contain several unexplained and unauthorized redactions. For example, the names and addresses of some former employers, as well as the names and titles of some former supervisors, are redacted from Ms. Bailey's job applications. So, too, are the names of character references in addition to the references' home address and telephone numbers. Past employment experience and the names of character references have been deemed nonexempt in open records decisions issued through the years. 5 Moreover, at least one time reporting document was omitted from the records disclosed to Ms. Hatfield but not identified in the catalogue of records withheld. 6 We are aware of no exception authorizing nondisclosure of this record.
The Cabinet correctly omitted Ms. Bailey's performance evaluations although the rationale for doing so was incomplete. While the Cabinet is correct in asserting that the Attorney General affirmed the denial of access to performance evaluations in appeals issued before and after OAG 77-394, this office was directed to modify this position in
Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006). In that case, the court rejected a "bright-line rule completely permitting or completely excluding from public disclosure employees' performance evaluations" and emphasized the importance of a case-by-case analysis based on a comparative weighing of the employee's privacy interest in his or her evaluation and the public's interest in scrutinizing "the details of the operation of a public agency. " Id. at 14. In Cape Publications , the employee whose evaluation was sought had "committed a criminal act made possible by his position at a public agency, " and was deemed to have forfeited his privacy interest in the "information about...[his] job performance that would shed light" on the agency's operations. Id. Based on the record before us, it is our understanding that Ms. Hatfield's allegations against Ms. Bailey "have been reported to the Kentucky State Police," and that the Cabinet considers its "review of [Ms. Hatfield's] allegations to be closed." 7 At this juncture, and in the absence of a finding of criminal conduct, we resolve the privacy issue in Ms. Bailey's favor and affirm the Cabinet's denial of that portion of Ms. Hatfield's request. Should KSP's investigation proceed, and criminal action result, however, it is possible that the privacy interest asserted by the Cabinet on Ms. Bailey's behalf will yield to the public's interest in "the details of the operation" of the Cabinet and the actions of one of its employees.
We also agree with the Cabinet's position that Ms. Bailey's agency level personnel file "does not contain disciplinary actions," omitting any reference to complaints deemed unsubstantiated, based on its interpretation of KRS 18A.020(2)(b) and (c). Those provisions mandate inclusion in the agency level personnel file of records reflecting action "[w]henever an employee is reprimanded for misconduct, other infraction, or failure to perform his duties" and, generally, "the complete record and supporting documentation for each personnel action." (Emphasis added).
The record indicates that while Ms. Hatfield submitted complaints against Ms. Bailey to at least eight offices and/or employees within the Cabinet, the complaints submitted by Ms. Hatfield did not result in a "reprimand" or a personnel action. Logically, then, the complaints were not included in the personnel file, and the "personnel file" is the only thing that Ms. Hatfield requested by a plain reading of her request: " [a] copy of [Eloise] Bailey's entire personnel file [...] to see what disciplinary action she has had during her career both before and after [Ms. Hatfield] complained about her...[and] what response, if any, her supervisors made..." While her request gratuitously includes language indicating why she requested the personnel file (i.e., everything that follows the words "to see"), that language is not, in-and-of-itself, a request for additional documents.
It is the view of this Office that Ms. Hatfield's requests did not expressly seek complaints against Ms. Bailey beyond those that would be required to be maintained within her agency level personnel file. Consequently, we do not believe it was incumbent on the Cabinet to provide Ms. Hatfield with copies of her own unsubstantiated complaints against Ms. Bailey when her request does not adequately seek such records.
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:
Laura HatfieldJay KleinMona S. Womack
Footnotes
Footnotes
1 Ms. Hatfield's request reached the Cabinet's Office of Human Resource Management on April 8, 2013.
2 KRS 61.872(3)(b) and KRS 61.874(1) authorize public agencies to condition the mailing of copies of public records on "receipt of all fees and the cost of mailing."
3 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."
4 KRS 61.880(2)(c) authorizes the Attorney General to "request additional documentation from the agency for substantiation...[including] a copy of the records involved [in the open records dispute] but the [disputed] records shall not be disclosed."
5 See, e.g., 93-ORD-32 (affirming public's right of access to the names of character references but not their home addresses and telephone numbers).
6 Leave Balance Correction for Pay Period Ending: 9/30/10."
7 May 8, 2013, letter from Bruce T. Linder, Director of the Division of Service Regions for the Cabinet's Office of the Commissioner, to Ms. Hatfield.