Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Frankfort violated the Kentucky Open Records Act in its disposition of State Journal reporter Brad Bowman's August 1, 2016, request for the personnel file of a police officer. For the following reasons, we conclude that the city did not violate the Act.
Mr. Bowman requested "copies of any documents in Frankfort Police Maj. Rob Richardson's city personnel file between Jan. 1, 2015 to June 29, 2016." On August 2, 2016, City Clerk Chermie Maxwell provided the records, with the exception of an employee evaluation, which was withheld on the basis of KRS 61.878(1)(a) as "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This appeal immediately followed. Mr. Bowman argues that "the public reserves the right to view" Major Richardson's evaluation "as he is a public employee. " Attorney Robert C. Moore responded to the appeal on August 16, 2016, supporting the city's argument under KRS 61.878(1)(a).
In 1992, the Kentucky Supreme Court established a standard by which we judge the propriety of a public agency's reliance on KRS 61.878(1)(a) as a basis for denying access to public records. At pages 327 and 328 of
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Court articulated the following standard:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
The Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity ...." Id.
In a subsequent analysis of the privacy exemption, the Court of Appeals refined this standard.
Zink v. Com., Dept. of Workers' Claims, 902 S.W.2d 825 (Ky. App. 1994). At page 828 of that opinion, the court discussed its "mode of decision":
[O]ur analysis begins with a determination of whether the subject information is of a 'personal nature.' If we find that it is, we must then determine whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy. ' This latter determination entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [ Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
In the context of public employees' performance evaluations, the privacy interests are well established.
The confidentiality of performance evaluations allows evaluators to speak more frankly about an employee than they might if the evaluations were known to be open to public disclosure. In addition, performance evaluations certainly 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) (emphasis added). The Court of Appeals in Cape Publications ultimately found that where a local parks department employee was charged with "committing a criminal act made possible by his position at a public agency," which also led to the administrative suspension and eventual resignation of his supervisor, both his evaluations and his supervisor's were subject to disclosure to a newspaper under this high standard. Id. at 14.
As the court stressed in Cape Publications , the balance of interests between privacy and disclosure depends upon the facts of each case, and "bright-line rules permitting or exempting disclosure are at odds with established precedent." Id. Thus, for example, the fact that a public employee may be the head of an agency is not "dispositive standing alone." 11-ORD-190; 09-ORD-150. Facts must be presented "that would support a claim of a superior public interest in the ? evaluation that would override [the employee's] long-recognized privacy interest in that record." 07-ORD-125.
Accordingly, where there was no "proof that [a school] principal committed a crime or engaged in misconduct resulting in forfeiture of his privacy interests, or that he supervised a person who committed a crime or engaged in misconduct, thus elevating the public's right to scrutinize how he was evaluated in his supervisory role," there was no "superior public interest" in disclosing his evaluation to a newspaper. Id. On the other hand, where a public library director's fiscal management was publicly questioned by a city councilman and the council reduced the library's funding by $ 100,000, with the library board imposing a written list of job expectations for the director, followed by a performance evaluation, we found that these facts "elevate[d] the public's right to scrutinize how she was evaluated in her supervisory role" and warranted disclosure of the evaluation to a newspaper. 11-ORD-190.
In 10-ORD-163, we required disclosure to a newspaper of the evaluation of an employee who had "'gone public' relative to her criticisms of staff problems within the agency that employ[ed] her," by filing a complaint through the Office of the Governor, and had filed a grievance "based on her belief that comments in her evaluation were retaliatory." We found that she had "willingly forfeited her privacy interest in her grievance and the evaluation that gave rise to it," noting that the agency's withholding of the document was not at her request. Id. Yet when that employee herself requested a copy of another employee's evaluation, we found no waiver of privacy on that employee's part, nor any showing of an overriding public interest that outweighed the privacy interests attached to the other employee's evaluation. 10-ORD-096.
In this case, Mr. Bowman presents no facts that arguably effect a forfeiture of Major Richardson's privacy interest in his evaluation or create an overriding public interest in disclosure. The only fact asserted is Major Richardson's status as a public employee. We are not concerned here with the performance evaluation of an agency head. Under normal circumstances, "the performance of an ordinary employee or even one of comparatively high rank is not of such significant public interest that it should be subject to disclosure. " Cape Publications, supra, 191 S.W.3d at 13.
In balancing the competing interests, we recall that the court in Cape Publications recognized two privacy interests involved in performance evaluations: the presence of "personal information" and the need for evaluators to "speak more frankly" about employees in an effort to improve performance. Id. On the other side, the public interest in disclosure which undergirds the Open Records Act is based on "the citizens' right to be informed as to what their government is doing." Zink, supra, 902 S.W.2d at 829.
In 13-ORD-063, we found that the balance of interests did not favor disclosure of the evaluations of two former majors with the Hopkinsville Police Department who had previously filed civil suits alleging discrimination in promotions and had themselves been sued civilly by a prisoner. Given the fact that no basis for disclosure has been alleged in the present appeal beyond Major Richardson's status as a public employee, we find no reason to reach a different result, and therefore base our decision upon the reasoning in 13-ORD-063.
In view of all the circumstances, therefore, we conclude that the disclosure of Major Richardson's performance evaluation would not significantly further the purpose of the Open Records Act and no overriding public interest has been shown to defeat the recognized privacy interests. Accordingly, we find no violation of the Act. 1
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 must 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 Mr. Bowman's appeal also mentions a request for an "interview" conducted at some point with Major Richardson. Since no copy of that request was provided to this office, no appeal has been perfected on that issue pursuant to KRS 61.880(2)(a), and therefore this issue is not properly before us under 40 KAR 1:030, Section 1. We note, however, that the city has indicated no record was made of the interview in question.