Request By:
Vanessa Ashley
David T. Lovely
Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in its partial denial of a request for records relating to the candidates and interview process for a job vacancy. For the reasons stated below, we find that CHFS violated the Act in withholding the application, résumé, and names of references for the successful candidate.
By request dated January 30, 2017, Vanessa Ashley made an open records request to the Cabinet for Health and Family Services ("CHFS" ) for "any and all records pertaining to the Legal Secretary position in Kenton [County] (51061BR). To include résumés, applications, references, interview questions/answers, scoring results and communications concerning position." CHFS responded on February 7, 2017, 1 providing "the selection worksheet, the certified register report and the justification letter for the Legal Secretary for which you interviewed for, with the following exceptions . . ." The letter then listed the types of information and records redacted or withheld pursuant to KRS 61.878(1)(a), 2 and authorities upholding the nondisclosure. 3 CHFS also withheld interview questions, notes and worksheets as preliminary records under KRS 61.878(1)(i), 4 which allows nondisclosure of certain preliminary records, and also stated that "interview question and answers" are considered "examination materials" which may be withheld pursuant to KRS 18A.020(4). 5 Ms. Ashley appealed the partial denial of her request and David T. Lovely, Office of Legal Services, responded to the appeal for CHFS. Mr. Lovely addressed the same issues and authorities provided in CHFS's initial response to Ms. Ashley.
In regards to employment application materials of unsuccessful applications, we have held that such materials are typically exempt from disclosure pursuant to KRS 61.878(1)(a). This office has recognized that the privacy interests of unsuccessful applicants for public employment in records relating to them is superior to the public's interest in disclosure. See, e.g., OAG 90-113; 96-ORD-1; 97-ORD-72; and 00-ORD-90. These decisions were premised on the notion that disclosure might embarrass or harm applicants who fail to get a job. Present employers, coworkers, and prospective employers, should the applicants seek new work, would learn that others were deemed better qualified for a competitive appointment. The simple fact that the unsuccessful applicant wished to leave his/her present employment might prove embarrassing. Ultimately, the hiring and appointment process might be compromised by encouraging "lesser qualified but thicker skinned persons [to apply]."
Arizona Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 806 P.2d 348, 352 (1991).
Regarding release of public employee performance evaluations, Kentucky law has undergone revision with respect to access to such evaluations. Past open records decisions approved an agency's right to withhold evaluations on the basis of KRS 61.878(1)(a). See 92-ORD-1145 and authorities cited therein. Although evaluations relate to an employee's discharge of his public duties, a matter in which the public has a strongly substantiated public interest, we recognized that privacy interests implicated by disclosure of evaluations were superior because disclosure might "spur unhealthy comparisons, breeding discord in the workplace and result in injury and embarrassment to the employee." 92-ORD-1145, p. 4. In
Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006), Kentucky's courts modified this position, rejecting "[a] bright line rule completely permitting or completely excluding from disclosure public employees' performance." The Court of Appeals reasoned that the employee forfeits his privacy interest when he engages in misconduct 6 and that, in such instances, the "public interest in the details of the operation of a public agency could be advanced by disclosure of non-personal information contained on the evaluation." 191 S.W.3d 14. See, 15-ORD-100. As there is no indication of misconduct by any employees implicated in this appeal, or heightened public interest in their job performance, they retain a privacy interest in their evaluations to which the public interest must yield. We find no violation by CHFS in withholding the performance evaluations of all of the employees who competed for the Legal Secretary position.
As to interview questions and answers, in the instant appeal, CHFS properly denied this portion of the request under the exclusionary language found in the last sentence of KRS 18A.020(4): "an applicant, an eligible, or a state employee shall not have the right to inspect or to copy any examination materials. " CHFS explained that the interview questions and answers sheets were considered "examination materials," as they were used to evaluate an applicant's qualifications and may be used again in future interviews. Release of the questions, and answers provided by the applicants, would give an unfair advantage to applicants in future interviews. Under these circumstances, we conclude that the requested interview questions and responses, including any notes recorded by the interview panel, constitute "examination materials," the disclosure of which is prohibited by KRS 18A.020(4). 02-ORD-168. Accordingly, we affirm CHFS's denial of this portion of Ms. Ashley's request.
In contrast to the application materials of unsuccessful applicants, the Cabinet failed to specifically address the issue of responsive application materials for the successful candidate for the vacant position. In
Core v. United States Postal Service, 730 F.2d 946 (4th Cir. 1984), the Fourth Circuit Court of Appeals held that the Freedom of Information Act, 5 U.S.C.A. sec. 552, compels disclosure of information pertaining to the employment histories of successful applicants for federal employment, but precludes disclosure of other applications. Recognizing that the identities of applicants selected for positions are known, and that disclosure [of the fact] that they wished to leave their former employment cannot embarrass them since this fact is also known, the court reasoned that the release of their applications "would cause but a slight infringement of their privacy. " Core at 948. Continuing, the court observed: "In contrast, the public has an interest in the competence of people the [federal government] employs and its adherence to regulations governing hiring. Disclosure will promote these interests." Core at 948. In past decisions of this office we have adopted the reasoning of the Fourth Circuit Court of Appeals as it applies to application materials of successful candidates. See, 08-ORD-121. As CHFS did not address the issue of withheld application materials 7 (specifically the employment application, résumé, and names of references) of the successful candidate, we find that CHFS violated the Open Records Act and that those materials, appropriately redacted for personal information (telephone numbers, and contact information) under KRS 61.878(1)(a), must be promptly provided to Ms. Ashley. See, 93-ORD-32, p. 4, citing OAG 82-234, p. 3 (holding that public's interest in names of references is superior to the references' minimal privacy interest in their names). See also, 05-ORD-046 (agencies must release the names of references appearing on job applications and related documents, but may withhold information of a personal nature) and 06-ORD-006 (disclosure of information concerning job experience/qualifications and names of references would not constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a)).
Ms. Ashley also requested "communications concerning position." Neither Ms. Ashley's appeal nor CHFS's responses addressed this issue specifically. CHFS did provide a copy of the "Justification Memorandum" from Mona Womack, Deputy General Counsel, to Beth Feddersen, Human Resource Branch Manager, Office of Human Resource Management, which explained why the interview panel recommended the successful candidate. In the absence of any further explanation on this portion of the request in Ms. Ashley's appeal, it appears that CHFS provided this memorandum in response to the request for "communications concerning position" and we find no violation of the Open Records Act in respect to this portion of Ms. Ashley's request.
Ms. Ashley also complains in her appeal that the Personnel Board has not given her a hearing date. This office does not have the authority under KRS 61.880(2) to consider complaints regarding the scheduling of hearings before the Personnel Board and so we will not address that issue further.
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 proceeding.
Footnotes
Footnotes
1 The record on appeal does not indicate when CHFS received the request, and we therefore decline to decide whether the response was timely under KRS 61.880(1), which requires that a public agency must respond to the requester, whether it will comply with the request, within three business days.
2 KRS 61.878(1)(a) allows a public agency to withhold: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
3 CHFS explained the exempted information and the authorities upholding those exemptions: "Personal and private information includes social security numbers (95-0RD-151); employee identification numbers (09-0RD-049); home address (including home county and home county code); home phone numbers (95-0RD-151); physical characteristics (height, weight, disabilities) (Zink v. Department of Workers claims, 902 S.W.2d 825 (Ky. App. 1994); race and gender (96-ORD-232 and 09-ORD-027); date of birth (95-0RD-151); educational transcripts (Federal Education Privacy Act, 20 USC 1232); addresses of references (95-ORD 151); and driver's license numbers, as well as documents relating to health and life insurance, benefits and banking."
4 KRS 61.878(1)(i) allows withholding: "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency."
5 KRS 18A.020(4) states: "Upon written request a state employee, an applicant for employment, and an eligible on a register shall have the right to inspect and to copy any record and preliminary documentation and other supporting documentation that relates to him, except that an applicant, an eligible, or a state employee shall not have the right to inspect or to copy any examination materials ." (Emphasis added).
6 In Cape Publications the employee's misconduct is described as "a criminal act made possible by his position at a public agency." 191 S.W.3d at 14.
7 We recognize that CHFS provided the Selection Worksheet that contained information from the successful applicant, but did not provide her employment application, résumé or names of references.