Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Tyler Fryman appeals the City of Danville's response to his January 5, 2016, request for nonexempt records in Officer Ryan Hundley's personnel file, including disciplinary records. The city first responded on January 8, 2015, advising Mr. Fryman that it required additional time to "locat[e] and prepar[e]" the nonexempt records, to make "the necessary redactions for personal information, " pursuant to KRS 61.878(1)(a) , and to identify "docu-ments/information that are exempt from disclosure" under separate statutory enactment. 1 The city committed to issuing its final response on or before January 22, 2016.
On January 21, 2016, the city issued a final response, agreeing to provide Mr. Fryman with copies of Officer Hundley's personnel records, including "any citizen complaints and/or final actions taken on any such complaint and any final disciplinary action (whether or not based upon a citizen complaint)." The city denied him access to "supporting documentation, " characterizing this documentation "as preliminary and exempt from disclosure pursuant to KRS 61.878(1)(i) and (j)." Further, the city advised that "personal information" such as medical, health, dental and life insurance, and retirement benefits, was redacted pursuant to KRS 61.878(1)(a).
On appeal, Mr. Fryman objects to the delay in the production of the records and to the city's nondisclosure of supporting documentation relating to complaints about Officer Hundley. In supplemental correspondence transmitted to this office after Mr. Fryman initiated his appeal, the city reaffirmed its earlier arguments but, for the first time, indicated "[t]here is only one 'final action' on a complaint in Officer Hundley's file, dated December 3, 2015," that "no 'supporting documentation' was relied upon in taking action against Officer Hundley," and that "[t]o the extent there may be any related documentation, it was not adopted into that final action and therefore retains any preliminary status afforded by law." Finally, the city asserted that "to the extent that related documentation" was inaccurately characterized as "preliminary," "those records (namely, a cell phone video) directly concern and identify juveniles" and are shielded from disclosure by KRS 61.878(1)(a). An attached copy of the "Notice of Disciplinary Action" directed to Officer Hundley reflects that he was disciplined for an incident that occurred on a Boyle County School bus involving a student or students who he was attempting to identify among a busload of students.
To facilitate our review of the issues on appeal, this office requested additional information from the city on February 23, 2016 pursuant to KRS 61.880(2)(c) . From the city's responses to our questions, we learned:
1. Officer Hundley's personnel file, excluding his KRS 15.382 file, consisted of 19 records totaling 38 pages, and the city maintained that it required reasonable time to assess "unique exemption issues" presented by KRS 15.400(3) and "a cell phone video that directly concerned and identified juveniles. "
2. In addition to those records, or portions of records, identified as "personal information" in its final response to Mr. Fryman's request, the city withheld "personal phone numbers, home addresses, age/date of birth, driver's license numbers, dates of graduation, and dates of employment in past jobs."
3. Officer Hundley's personnel file contained only one disciplinary record and no complaints. Officer Hundley self-reported the incident that gave rise to the single disciplinary action.
4. The only "supporting documentation, " "was video footage of the incident . . . that directly identifies and concerns juveniles" for whom the privacy exception, KRS 61.878(1)(a), was invoked.
Although we find an insufficient basis for postponing Mr. Fryman's access to the nonexempt records in Officer Hundley's file, we affirm, with the limited exceptions discussed below, the city's reliance on KRS 61.878(1)(a) to support partial nondisclosure of personal information in the records.
KRS 61.880(1) states that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." (Emphasis added.) In general, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. However, the Attorney General has observed:
Only if the parameters of a request are broad, and the records implicated contain a mixture of exempt and nonexempt information, and are difficult to locate and retrieve, will a determination of what is a "reasonable time for inspection turn on the particular facts presented. " OAG 92-117, p. 4. In all other instances, "timely access" to public records is defined as "any time less than three days from agency receipt of the request. " OAG 82-300, p. 3 . . . .
01-ORD-140, p. 3, 4 (emphasis in original).
The city responded to Mr. Fryman's request within the statutory response time but advised him that it required an additional two weeks to "locate and prepare" the responsive records and make the appropriate redactions. Upon inquiry, the city acknowledged that Officer Hundley's personnel file, excluding his KRS 15.382 file, which was excluded from its calculations, consisted of nineteen records totaling thirty-eight pages. Further, the city acknowledged that the only unique challenge associated with retrieval and review was the necessity of removing KRS 15.400(3) protected records and resolving the issue of access to the cell phone video that identified students. The city did not demonstrate that the request implicated voluminous records, a challenging retrieval process, or that the redaction challenges presented exceeded standard redaction challenges contemplated by KRS 61.878(4). We therefore find that the two week extension of the statutory deadline for final agency response was not supported by the "particular facts presented. " OAG 92-117, p. 4.
Additionally, we find that the city failed to identify the proper exception authorizing nondisclosure of the cell phone video of the school bus incident for which Officer Hundley was disciplined and to identify all information withheld under authority of KRS 61.878(1)(a). In its final response, the city denied Mr. Fryman access to the video on the basis of KRS 61.878(1)(i) and (j), characterizing the video as a preliminary record that was not adopted as the basis of final action. In response to our inquiries, the city, for the first time invoked KRS 61.878(1)(a), asserting that the video "directly concerned and identified juveniles" and that disclosure would constitute a clearly unwarranted invasion of the juveniles' personal privacy. Because the video was the only evidence presented to the chief of police upon which he could base the decision to impose discipline, we disagree with the city that the video was not adopted as the basis of final disciplinary action. Accord, City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658, 659 (Ky. App. 1982) (recognizing that findings of fact submitted to the chief of police by internal affairs remain preliminary to the chief's final decision unless the chief "adopts its notes or recommendation as part of his final action" at which point the "preliminary characterization is lost"). KRS 61.878(12)(i) and (j) did not authorize nondisclosure of the cell phone video.
Nevertheless, we concur with the city in its view that KRS 61.878(1)(a) extends protection to the cell phone video. In 99-ORD-217, this office determine that a school bus surveillance video of an altercation between two students, in the custody of the school district, enjoyed protection as an "education record" under federal 2 and state law 3 extending privacy protection to such records. We held that because the video "contains information on more than one student, and that information is inextricably intermingled and therefore nonsegregable," the school district could not disclose the video "in such a way as to meaningfully honor the rights of [the parents of one student] to inspect the tape without violating the corresponding rights of the other students and their parents in nondisclosure of the [video] to third parties." 99-ORD-217, p. 4.
The City of Danville is not an educational institution. The existence of these laws imports a legislative commitment to ensuring the privacy rights of students. The circumstances warranting imposition of discipline are described in the Notice of Disciplinary Action. Mr. Fryman will be given the notice after he prepays for copies and/or postage. "[I]t appears from this already disclosed [,or available to be disclosed upon prepayment of copying fees,] portion of the record[], that the [city] faithfully performed its purpose" by reviewing the single evidentiary record, i.e., the video itself, and imposing appropriate disciplinary measures. Kentucky Bd. of Examiners of Psychologists and Div. of Occupations and Professions, Dept. of Admin. v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992). We conclude that "further disclosure of information contained in the [cell phone video] would, as a matter of law, constitute a clearly unwarranted invasion of [the students'] personal privacy. " Board of Examiners , 826 at 328, 329.
As for the remaining information to which Mr. Fryman was denied access pursuant to KRS 61.878(1)(a), we affirm the denial as to his personal phone number, home address, driver's license number, and date of birth (with the exception of the year of Officer Hundley's birth which the public is entitled to access for the purpose or confirming that he satisfies the age requirement for certification found at KRS 15.382(2)). Accord, 03-ORD-012 (identifying records in a personnel file generally excluded from public inspection by KRS 61.878(1)(a)). We also affirm the city's denial of that portion of Officer Hundley's personnel file relating to medical, health, dental, and life insurance to the extent these records contain his, or a family members', health information on personal privacy grounds. 05-ORD-239 (affirming agency reliance on KRS 61.878(1)(a) to authorize nondisclosure of health information). Similarly, information relating to retirement benefits is routinely treated as exempt under KRS 61.878(1)(a) . 02-ORD-183 (affirming Kentucky Teachers' Retirement Systems' denial of teacher retirement account information on the basis of KRS 61.878(1)(a) and KRS 161.585(1)).
We do not affirm the city's decision to withhold dates of graduation and dates of employment in past jobs. This office has long recognized that records "reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment" are subject to public inspection. See 03-ORD-012, p. 7, and authorities cited therein. Such matters are directly related to qualification for public employment. Any articulable privacy interest must yield to the public's right to know the qualifications of employees entrusted with their safety and welfare. With the exceptions noted above, we find that the city's ultimate disposition of Mr. Fryman's request was otherwise consistent with the Open Records Act.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 In support, the city cited KRS 15.382(15) and (17). These statutes, relating to peace officer certification, require a psychological suitability screening and a polygraph examination prior to certification. They do not prohibit disclosure of the results. However, KRS 15.400(3) states:
The Open Records Act notwithstanding, the person's home address, telephone number, date of birth, Social Security number, background investigation, medical examination, psychological examination, and polygraph examination conducted for any person seeking certification pursuant to KRS 15.380 to 15.404 shall not be subject to disclosure.
Mr. Fryman raises no objection to these denials.
2 Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g.
3 Family Education Rights and Privacy Act, KRS 160.700 et seq.