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 Board of Education of Shelby County violated the Open Records Act in its disposition of Todd Bonds' June 1, 2015, request for copies of certain employee records. For the reasons that follow, we find no substantive violation of the Act.
Mr. Bonds' faxed request was divided into three items, as follows:
1. Documentation identifying any employee that identified themselves as an ethnic minority and was supervised by former employee Kimberly Dawn Breeding Lake.
2. Documentation with necessary redactions of these former ethnic minority's [sic] employee/personnel files that were allegedly supervised by Kim Lake.
3. Documentation with necessary redactions of these alleged employees of Kim Lake with the racial/ethnic heritage.
(Emphasis omitted.) Mr. Bonds initiated an appeal to the Attorney General on June 16, 2015, after receiving no response. 1 The appeal was received in this office on June 19, 2015, on which date a notice of receipt was distributed by mail to the parties. On June 22, 2014, the Board's attorney, Grant R. Chenoweth, requested additional time to respond to the appeal; the Board's response was received on June 30, 2015. On the same day, the school district issued a response to Mr. Bonds' open records request.
The school district disputes having received Mr. Bonds' faxed request on June 1, 2015, alleging that it first saw the request when it received a copy from the Attorney General. While we cannot conclusively resolve the factual issue of whether the fax was received, it is clear at least that the district's counsel had received a copy of the request by June 22, 2015; presumably a copy would also have reached the superintendent around that date. KRS 61.880(1) requires a public agency to respond to an open records request within three (3) days after receipt, excluding weekends and legal holidays. Since the district did not issue a response to Mr. Bonds' request until June 30, 2015, we find that it committed a procedural violation of KRS 61.880(1).
In its June 30, 2015, response, the Board denied Mr. Bonds' request for two reasons. First, the Board points out that "the race and gender of public employees, as recorded in their personnel files, is personal information and is not available for public inspection" under KRS 61.878(1)(a), as its release would constitute a "clearly unwarranted invasion of personal privacy. " Secondly, the Board states that "there is no record which reflects a list of employees directly supervised by Ms. Lake during Ms. Lake's employment in the Shelby County Public Schools," and therefore Mr. Bonds' request is not "for a readily available record, but is a request for information, the response to which would require agency employees to engage in a research project or the creation of a record." We do not reach the Board's second argument because we find its first to be dispositive.
KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. at 327-28.
The public interest in open records has been analyzed as follows by the Kentucky Court of Appeals:
At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). In regard to public employees, we observed in 15-ORD-100:
To the extent they are employed by a public agency, [employees] are not "private citizens" in the strictest sense. They are, instead, public employees in whom the public has reposed its trust and in whom the public has a legitimate interest. That interest does not extend to personal information that is unrelated to their qualifications for public employment and the discharge of their public duties .
(Emphasis added.) This office has previously recognized the privacy rights of public employees in their race and gender codes. Id.; see also 13-ORD-110. Furthermore, we are unaware of circumstances under which any Shelby County Schools employees would have waived their personal privacy rights.
While Mr. Bonds is evidently interested in ethnic information for the employees formerly supervised by Kim Lake, there is nothing in the record to indicate that these personal data would shed light on the public agency's conduct or relate to the performance of the employees' public duties. Therefore, the public interest in disclosure of such information is de minimis , since it would not materially advance the purposes of the Open Records Act, and the balance tilts in favor of the employees' privacy. Since all portions of Mr. Bonds' request were premised upon employees' racial or ethnic data, the privacy analysis pertains to the request as a whole. We therefore find no substantive violation of the Act in the Board's ultimate disposition.
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.
Jack Conway
Attorney General
James M. Herrick
Assistant Attorney General
Footnotes
Footnotes
1 Mr. Bonds also refers to an earlier open records request for which the Shelby County School District has disputed receiving payment from him. We do not reach the merits of that dispute, as we have not received the documentation required to perfect an appeal under KRS 61.880(2)(a) and 40 KAR 1:030, Section 1.