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 Jefferson County Board of Education properly relied on KRS 61.878(1)(a) in partially denying WDRB-TV's November 11, 2014, request for "any complaints, documents, interviews, investigations or reports involving Helene Kramer." For the reasons that follow, we conclude that the Board has not met its burden of justifying all of the extensive redactions and omissions in its response. However, based on in camera review of redacted documents, certain redactions of the specific details of the complaint were properly redacted, as they related to the primary complainant's personal life.
The station's request was sent by e-mail from reporter Toni Konz. On December 12, 2014, Superintendent Donna M. Hargens responded as follows:
? With the exception of those records withheld from disclosure pursuant to the exemption outlined below, copies of the requested records are enclosed herewith.
Certain individuals have asserted privacy interests in information contained in certain records responsive to this request. 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" are exempt from disclosure. Several records contain information of a personal nature clearly within the scope of the privacy interests asserted by these certain individuals. Therefore, pursuant to KRS 61.878(1)(a) and KRS 61.878(4), these records were redacted or withheld from disclosure.
In five places, documents were noted to be "redacted in [their] entirety," including witness statements (the statements of Ms. Kramer herself and the complainants against her) and copies of numerous e-mails from Ms. Kramer and the primary complainant.
"An agency response denying, in whole or in part, inspection of any record shall 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. " KRS 61.880(1). This statutory language requires "particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
The documents which the Board did produce to Ms. Konz were subjected to extensive redaction. One of these records, a December 11, 2014, memo to Ms. Kramer from Superintendent Hargens, typifies the nature of the redactions that were made:
As you know, [REDACTED] has alleged that you [REDACTED] . An investigation by the Office of Compliance and Investigations substantiated that allegation. In your own statement provided to investigators, you indicate that 'you deeply regret [REDACTED] 'take full responsibility', and indicate that 'a member of the Superintendent's Cabinet should not [REDACTED]
A further review by Mark Fenzel substantiated that "[REDACTED] that the Fenzel report also notes that" [r]egardless of its impact, Ms. Kramer regrets [REDACTED]
Mr. Fenzel also investigated whether [REDACTED] Mr. Fenzel determined that [REDACTED]
As we discussed and agreed, it was not appropriate for you to [REDACTED] does nothing to benefit the work of the Jefferson County Public School District. Let me be clear about my expectations for the future. Our students must be the center of our universe. Core Value # 9 (one of the foundational values of the Strategic Plan Vision 2015 ) states that "Adults model integrity, respect, creativity, and accountability."
I expect that your conversations will center solely around the enormous task ahead-[REDACTED] about our work and our progress. [REDACTED] must model this singular focus. Failure to meet these expectations in the future may result in disciplinary action.
It is clear we must continue our efforts to resolve these [REDACTED] I appreciate your willingness to work with an external mediator.
In addition, care should be taken to ensure that [REDACTED]
To take another example, the investigative report by Mark S. Fenzel was even more heavily redacted, including several paragraphs removed in their entirety and a "Conclusion" section that reads:
1. Ms. Kramer made an inappropriate [REDACTED]
2. There is a dispute between Ms. Kramer and [REDACTED] as to whether or not it was [REDACTED] or made in a way that would be evidence of a [REDACTED] on her part, or as part of a general discussion about [REDACTED] .
3. Regardless of its impact, Ms. Kramer regrets [REDACTED]
4. [REDACTED] agree that there have been a [REDACTED]
5. [REDACTED] have not seen or heard any evidence of [REDACTED] on the part of Ms. Kramer.
6. Ms. Kramer produced evidence that even after [REDACTED] heard the [REDACTED] she continued to have a friendly professional relationship with her.
7. Ms. Kramer produced evidence that in spite of some [REDACTED] between she and [REDACTED] there were situations where she praised [REDACTED]
8. [REDACTED] There is sometimes "yelling" when for example, there is a [REDACTED] However, this is considered normal and generally the [REDACTED]
9. Other than [REDACTED] which is denied by Ms. Kramer, there is nothing to indicate that [REDACTED] are the result of [REDACTED] The environment in this [REDACTED] does not seem to meet that standard.
10. Going forward, it will be very difficult for the [REDACTED] unless there is some resolution of the [REDACTED]
11. [REDACTED]
12. Ms. Eaves appears to have acted appropriately in failing to act on [REDACTED] In spite of the fact that this was a '[REDACTED] Ms. Eaves offered suggestions as to what [REDACTED] might do to remedy the situation.
13. Although it does not appear that Ms. Kramer [REDACTED] was clearly inappropriate and cannot be condoned in [REDACTED] Appropriate steps should be taken to [REDACTED] this could include training or mediation. In addition, care should be taken to ensure that [REDACTED]
In short, essentially all that could be gleaned from the records provided was that Helene Kramer was alleged to have done something inappropriate, that the allegation was substantiated, and that mediation was offered as a solution.
On June 1, 2015, attorney John B. Moore initiated an appeal on behalf of WDRB. He argues that [r]efusing to disclose even the nature of the substantiated complaint against a public employee is contrary to the purpose of the Act, which the Kentucky Supreme Court has said is to 'open the operations and activities of the state's agencies to public scrutiny, to "reveal whether the public servants are indeed serving the public," ? or, as the [U.S.] Supreme Court has put it, to enable citizens "to be informed about what their government is up to."'
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013)." (Emphasis in original; footnote omitted.)
In a response to the appeal dated June 24, 2015, attorney Tyson Gorman argues on behalf of the Board that "the personal information lies at the very heart of [the] allegations" and the two complainants against Ms. Kramer "demanded strict confidentiality. ? [O]ne individual requested 'not only that my name be redacted, but that any information personally identifiable to me or my role at JCPS be redacted. ..', adding that 'public disclosure of opinions about my private life is an invasion of personal privacy and, pending accuracy, could amount to libel and slander.' Both individuals asserted concerns the release of identifying information would have on their careers." Mr. Gorman contends that "Ms. Kramer's actions had nothing to do with the performance of her public duties. Hence, the public's legitimate interest in the matter should be minimal at best."
This office has reviewed the unredacted records in camera pursuant to KRS 61.880(2)(c). The documents reveal misconduct by Ms. Kramer as reported by two other Jefferson County Public Schools employees. As noted in the Superintendent's letter to Ms. Kramer, the misconduct centered on the content of her "conversations" at work. As Mr. Gorman states, these conversations related to an employee's personal life as opposed to work performance. Both complainants requested that their identities be kept confidential, as in one case the employee's personal life (rather than job duties) was discussed and in both cases the employees were concerned about their future working relationships if their identities were revealed. The redactions made by the Board, however, go beyond the protection of these employees' identities, so as to obscure even the general nature of the complaint and make it unduly difficult to assess the appropriateness of the agency's response. 1
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).
The privacy interest in this appeal has been identified as the primary complainant's desire to avoid discussion of personal matters, along with concerns on the part of the complainants about the effects on their careers that would result from disclosure of their identities in the context of this investigation. The "privacy rights of the public employee extend only to matters which are not related to the performance of his work." OAG 80-43. Inasmuch as the primary complainant was implicated only in regard to that individual's private life and not to either complainant's work performance, we find the employees' request for redaction of identifying information to present a significant privacy interest.
It is still necessary, however, to determine the weight of the public interest in disclosure in order to balance it against this privacy interest, and to determine whether the redactions were excessive. We find that the interest in disclosure of the general nature of the complaint against Ms. Kramer goes directly to the purpose of the Open Records Act, as it relates to the public's ability to know how a public agency is handling allegations of misconduct. Therefore, the public interest in knowing the outcome of the investigation is legitimate.
"The unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment."
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994) (citing KRS 61.871). We find no privacy interest attaching to Ms. Kramer in this case, as she was found to have acted improperly in her dealings with other employees. "[W]hen an individual enters on the public way, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent."
Zink v. Com., Dept. of Workers' Claims, supra, 902 S.W.2d at 828. It is well established that "reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records." 03-ORD-012. "[A] person does not typically work ? 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.
We recognize the complexities presented by a workplace situation in which persons "in the know" might piece together circumstantial evidence to guess the identities of the complainants. With that in view, we find that the significant privacy interest of the primary complainant outweighs the public's right to know the content of Ms. Kramer's work "conversations" concerning the primary complainant's personal life. For this reason, the redactions, to the extent that they obscure the general content of Ms. Kramer's inappropriate work conversations about another employee's personal life, are consistent with the Open Records Act. However, insofar as the Board redacted details of the response by JCPS to this situation, it has failed to meet its burden of proof under KRS 61.880(2)(c) to sustain the application of the privacy exception contained in KRS 61.878(1)(a). The same is true of the numerous other factual statements excised by the Board which do not identify the complainants or the content of the complained-about work "conversations. " The Board must review these redactions in light of this decision and make appropriate modifications.
We find that the public agency's conduct could be adequately evaluated without disclosure of the complainants' identities or the specific non-job-related comments made about them, and thus their privacy interest outweighs the public interest with respect to such information. Therefore, to the extent that the Board redacted names, occupations, and other specific identifying information or non-work-related statements pertaining to the two complaining witnesses, the redaction was justifiable under KRS 61.880(1)(a).
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.
Footnotes
Footnotes
1 In addition, the Board has redacted the names of three witnesses who apparently did not raise concerns of privacy or request confidentiality.