Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Community and Technical College System ("KCTCS") violated the Open Records Act in its disposition of James McNair's request for records from the personnel file of two former college presidents. For the reasons that follow, we find no violation of the Act.
Mr. McNair made his request on May 12, 2014, for the following records:
1. Copies of all documents, including annual evaluations, complaints, disciplinary actions, investigative reports, investigation outcomes and salary history, from the personnel file of Patrick Lake dating back to May 1, 2009.
2. Copies of all documents, including annual evaluations, complaints, disciplinary actions, investigative reports, investigation outcomes and salary history, from the personnel file of James Selbe dating back to May 1, 2009.
An initial written response was made to Mr. McNair on May 15, 2014, but does not appear in the record of this appeal. On May 21, 2014, KCTCS General Counsel J. Campbell Cantrill III signed the final agency response. KCTCS redacted some personal identifying information which is not at issue in this appeal, and further stated as follows:
Some records responsive to your request for "investigative reports" are denied pursuant to KRS 61.878(1)(a) "[p]ublic 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)(i), "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency", KRS 61.878(1)(j) "[p]reliminary recommendation, and preliminary memoranda in which opinions are expressed or policies formulated or recommended", and KRS 61.878(1)(l) "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" and CR 26.02(3) (work product doctrine) . The identity of an individual alleging sexual harassment is exempt. Some statements given during the investigation were not used as a basis for nor incorporated into the final decision regarding the discipline action taken, and are therefore exempt. [Citations omitted.] Responsive records relating to that request are included in the records described below.
One evaluation for Dr. Lake during his assignment as Special Assistant to the Chancellor is denied pursuant to KRS 61.878(1)(a) that exempts "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy" in that public interest in that role is not sufficiently heightened to outweigh his privacy interest in the evaluation.
(Emphasis added.)
Mr. McNair appealed to the Attorney General on June 23, 2014, complaining as to records withheld from the file of Dr. Lake, as follows:
No documents, including investigative materials, were provided that detailed Lake's termination as, resignation from or reassignment from president of Henderson CC. Nor did KCTCS provide one particular, undated evaluation of Lake in his subsequent job as special assistant to the KCTCS chancellor.
On July 7, 2014, Mr. McNair supplemented his appeal by stating that he had discovered the existence of the following undisclosed records concerning Dr. Selbe:
. Copies of transcripts of depositions taken from Hopkinsville CC employees in the course of the investigation of at least three separate incidents involving inappropriate conduct by Selbe.
. Documents pertaining to a 2012 incident in which Selbe allegedly approached a female employee and touched her shoulder while telling her about a dream in which he had had sex with zombies.
. Documents pertaining to a 2011 Hopkinsville CC executive staff meeting in which Selbe allegedly suggested, in the direction of the one woman attending the meeting, that a local weatherman must have a sexually arousing effect on her.
He argued that these records must have been part of the basis for the disciplinary action against Dr. Selbe.
On behalf of KCTCS, Mr. Cantrill responded to Mr. McNair's appeal on June 27 and July 17, 2014. As to the absence of Dr. Lake's resignation letter as president of Henderson Community College, Mr. Cantrill provided a copy to Mr. McNair and explained that it had not been produced earlier because it was not part of Dr. Lake's personnel file. He further stated that "[t]here are no complaints or investigative reports regarding Dr. Lake and no disciplinary action has been taken against him. He reiterated that personal privacy was the basis for withholding the one annual evaluation of Dr. Lake.
Performance evaluations "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). Mr. McNair has articulated no heightened public interest to be served by the disclosure of this evaluation. Thus, we find nothing in the record to establish an overriding public interest that would defeat the recognized privacy interests in Dr. Lake's evaluation in the capacity of Special Assistant to the Chancellor, the job he took after resigning the presidency of Henderson Community College. 1 For this conclusion, we adopt the reasoning contained in 13-ORD-063 (copy attached).
With regard to the alleged records pertaining to Dr. Selbe, Mr. Cantrill asserts that the disciplinary action against him was premised upon only one incident, to which the alleged 2011 and 2012 occurrences did not relate. Therefore, he argues, the written statements pertaining to those allegations during the investigation "were not used as a basis for nor incorporated into the final decision regarding the discipline action taken." This office has consistently held that witness statements constituting part of an investigation are preliminary documents when they are not adopted as part of the final agency action. See, e.g., 06-ORD-121; 05-ORD-007; 99-ORD-105. Since the allegations in these statements formed no part of Dr. Selbe's disciplinary action, we find that the records were preliminary in nature and were properly withheld under KRS 61.878(1)(i) .
Mr. Cantrill further states "that there were no 'depositions' taken during the investigation. My two staff attorneys and I conducted interviews, and took personal notes during the interviews. As stated in my May 21st letter, those are attorney work product and exempt under CR 26.02(3)." To the extent that attorney notes "constitute the mental impressions, conclusions, opinions or legal theory" of the attorneys, they are protected from disclosure under the work product doctrine. 07-ORD-147. Also, insofar as notes are not adopted as the basis of final agency action, they retain a preliminary character under KRS 61.878(1)(i). Id. Therefore, so long as either of these conditions applies, we find no violation of the Open Records Act in regard to the attorney notes.
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 proceedings.
Distributed to:
Mr. James McNairJ. Campbell Cantrill III, Esq.
Footnotes
Footnotes
1 We distinguish on the facts 09-ORD-113, which held that KCTCS must disclose the performance evaluation of a community college president, which was performed during her tenure as president, where the reasons for her reassignment had been publicly questioned.