Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern State Hospital violated the Open Records Act in denying Vincent Britton's July 30, 2013, request for information relating to recent hiring at Eastern State. For the reasons that follow, we find that Eastern State failed to make a timely response and its eventual denial was at least partially in violation of the Act.
Mr. Britton's letter dated July 30, 2013, stated in pertinent part as follows:
I am seeking all records including applications, resumes, background data, and relative qualifications of all new hires including my own since last year.
We [ sic ] fully understand that all personal (names, SSN's) would necessarily be redacted in the interest of confidentiality.
Having received no response, Mr. Britton initiated an appeal to the Attorney General on August 13, 2013, stating, "We [ sic ] are seeking these records to hopefully reflect the hiring parameters and if, in fact, the human resources staff are following acceptable procedures." Due to a misunderstanding, the original appeal was deemed unperfected; a renewed appeal was then initiated on September 13, 2013.
A response to the disallowed appeal, dated August 22, 2013, was filed by Eastern State's attorney, Michael R. Moloney, giving the following chronology:
In July 2012 Mr. Britton was interviewed by the then Human Resources Officer at Bluegrass Regional [Mental] Health/Mental Retardation Board, Inc. concerning employment at Eastern State Hospital, an entity operated by the Bluegrass Board. Mr. Vincent [ sic ] was not hired based upon comments made during the interview.
A week later Mr. Britton was re-interviewed and during that interview he changed the answers he had given during the previous interview and indicated that he was not interested in working nights.
Subsequently Mr. Britton completed and submitted another employment application to Eastern State Hospital and was again interviewed but was not recommended for employment due to his lack of work experience in the field.
Shortly after that, Mr. Britton's father, William [ sic ] Britton, began calling the Personnel Department at Eastern State Hospital inquiring as to the hiring process and why his son was not employed. Due to privacy concerns the information requested by William [ sic ] Britton, Mr. Vincent Britton's father, could not be provided.
On July 30, 2013 Mickey Sexton, the Regional Human Resources Director of the Bluegrass Board received an open records request from Vincent Britton[.]
As you can see from the open records request, the signature on the open records request is totally different from the signature on the application signed by Mr. Vincent Britton in April 2013, a copy of which is submitted herewith. It is for this reason that the open records request was denied.
Additionally, the open records request is so broad and requests information pertaining to other applicants which we believe would be an invasion of privacy of those individuals even though personal information would be redacted.
In a September 20, 2013, response to the renewed appeal, Mr. Moloney adds:
The most recent document received by the Bluegrass Board, signed by Mr. Vincent Britton, has a signature on it, again, that is different from Mr. Vincent Britton's signature on the original application and would appear to be the actions of Mr. William [ sic ] Britton signing his son's name.
The appellant has sent a reply letter dated November 4, 2013, on two occasions, stating that "my father, John Britton is assisting me, but with my full consent and signature below." On the original letter, there is no signature. A follow-up photocopy, with signature, is attached to an index card dated November 18, 2013, apologizing for the missing signature on the original. The index card bears the same signature. Although this office is not capable of performing professional handwriting analysis, we notice a marked difference between the November 18 signature and the one on Vincent Britton's employment application. Further, there is a marked difference between the signature on the open records request and appeal letter, on the one hand, and the employment application on the other.
We cannot, in the context of this appeal, resolve the factual issue of the authenticity of Vincent Britton's signature, but merely note its relevance to the privacy concerns raised. "[I]t is not, in general, within our statutory charge to resolve questions of fact or ? otherwise [to] act as a trier of fact." 09-ORD-170. Any applicant for employment with a public agency is entitled to view records relating to him under KRS 61.878(3). If it is actually Vincent Britton requesting the records on his own employment application, then the privacy analysis does not affect that portion of the request.
It is generally recognized that, in the absence of a heightened public interest in disclosure, application materials relating to unsuccessful applicants for employment may be denied on the basis of KRS 61.878(1)(a) as records the disclosure of which "would constitute a clearly unwarranted invasion of personal privacy. " 04-ORD-003 (copy attached) (citing 03-ORD-84, 02-ORD-221, 00-ORD-90, 97-ORD-2, 96-ORD-1, 95-ORD-38). The only exception is when the applicant requests his own records under KRS 61.878(3). See, e.g., 08-ORD-267. Thus, Eastern State's denial of Vincent Britton's application records did not substantively violate the Open Records Act if the requester was not actually Vincent Britton; but if Vincent Britton in fact made the request for his own records, the denial was improper.
The remainder of the request was for the "applications, resumes, background data, and relative qualifications" of persons hired at Eastern State Hospital from 2012 to the present. There is no blanket privacy protection for the records of successful applicants for public employment. Certain information may be redacted from the requested records on privacy grounds pursuant to KRS 61.878(1)(a); this information has been held to include race, sex, date of birth, Social Security number, home address, interview questions and answers, and college transcript information. See 09-ORD-027 (copy attached) . The complete withholding of such records, however, has not been justified and accordingly was in violation of the Open Records Act.
Therefore, we conclude that Eastern State Hospital improperly withheld the records relating to public employees in their entirety, as opposed to redacting the portions subject to privacy as required by KRS 61.878(4). Furthermore, if the request in fact came from Vincent Britton, the records relating to him should have been disclosed pursuant to KRS 61.878(3); however, if the actual requester was not Vincent Britton, his records as an unsuccessful applicant could be properly withheld under KRS 61.878(1)(a) in the absence of a heightened public interest in disclosure.
In either event, we also find that Eastern State failed to comply with KRS 61.880(1), which requires a response to be issued within three business days of receipt of a request for public records. Moreover, even when Eastern State belatedly responded after the filing of the appeal, there was no citation of the privacy exception in KRS 61.878(1)(a). KRS 61.880(1) requires a public agency "denying ? inspection of any record [to] include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " The statute requires "particular and detailed information" rather than a "limited and perfunctory response."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). The failure to comply with KRS 61.880(1) placed Eastern State Hospital in procedural, as well as substantive, violation of the Open Records 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:
Mr. Vincent BrittonMichael R. Moloney, Esq.Mr. Mickey Sexton