Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Campbell County School Board ("Board") violated the Open Records Act in the disposition of Erik Hermes' requests for records relating to Campbell County Schools employee Geoff Besecker. For the reasons stated below, we find a procedural violation but no substantive violation of the Act.
In his first request, dated February 14, 2017, Mr. Hermes requested a copy of Mr. Besecker's personnel file, including "any disciplinary records, including e-mails, that served as a basis" for disciplinary action, as well as any "emails and other documentation to and from former superintendent Roger Brady" regarding such disciplinary actions. The second request, dated March 19, 2018, was for copies of "emails, letters and written communication" with Mr. Besecker or anyone else that "served as a basis" for such discipline.
On February 15, 2018, Superintendent David Rust responded to Mr. Hermes' first request, stating that the Board was "in the process of gathering the requested information," which would be made available by February 26, 2018. KRS 61.880(1) requires a final disposition of a request for public records within three business days, excluding weekends and legal holidays. Although the three-day time period may be extended pursuant to KRS 61.872(5) where records are "in active use, in storage or not otherwise available," the Board alleged no such circumstances. The Board did not make its final disposition until February 23, 2018, thus committing a procedural violation of KRS 61.880(1).
In the Board's February 23, 2018, response, Dr. Rust notified Mr. Hermes that the copies were available upon advance payment of $ 6.80 at 10 cents per page. Pursuant to KRS 61.878(1)(a), "personal/private information" was redacted, including home address and phone number, Social Security number, evaluations, and medical information. The letter also referred to unspecified "other personal/private information." As to disciplinary information, Dr. Rust advised that one written reprimand was available, but the Board was withholding one private reprimand as "exempt from disclosure by law" pursuant to KRS 161.790(10).
On March 22, 2018, Dr. Rust issued a timely response to Mr. Hermes' second request, which the Board regarded as wholly included within the scope of his previous request. Dr. Rust attached a copy of the Board's prior response and informed Mr. Hermes that the "response remains the same."
Mr. Hermes initiated this appeal on April 13, 2018, complaining that the private reprimand should be released since Mr. Besecker "is a candidate for public office" and the Board's March 22, 2018, response to his second request was inadequate. On April 30, 2018, attorney Garry L. Edmondson responded to the appeal on behalf of the Board, stating that Mr. Hermes never paid the copying fee for the initial request. On May 7, 2018, Mr. Hermes replied that this was incorrect and he had in fact "picked up the documents and paid the fee, in person, on Friday, March 16th."
We find no error in the Board's withholding a written reprimand. A well-established line of decisions has held that "private reprimands" pursuant to statute, including private reprimands of teachers pursuant to KRS 161.790(10), are exempt from disclosure under KRS 61.878(1)(l). 1 15-ORD-054; 08-ORD-128; 01-ORD-139. KRS 161.790(10) authorizes a superintendent, as an alternative to termination, to "impose other sanctions, including suspension without pay, public reprimand, or private reprimand. " In 08-ORD-128, this office stated: "This brings us squarely within the realm of KRS 61.878(1)(l)." Additionally, we have reasoned as follows:
By the very nature of the language of the statute it is clear that a private reprimand is not public? If a private reprimand [were] interpreted as not being confidential, then it would be identical to a public reprimand. ? The General Assembly clearly intended that there be two types of reprimands, one which is public and open to disclosure and one which is confidential. Therefore, if a [teacher's] disciplinary file contains a private reprimand, it is not public record.
15-ORD-054, n.1 (quoting 01-ORD-139). We find no basis for Mr. Hermes' argument that Mr. Besecker's candidacy for public office nullifies the confidential nature of a private reprimand under KRS 161.790(10), since the statute contains no such exception, and KRS 61.878(1)(l) applies rather than the balancing of interests under KRS 61.878(1)(a). Therefore, the Board lawfully withheld the private reprimand.
Nevertheless, the Board was required by KRS 61.880(1) to "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. " (Emphasis added.) The Board's failure to cite the applicable exception, KRS 61.878(1)(l), constitutes a procedural violation of the Open Records Act. 16-ORD-211.
KRS 61.878(1)(a) authorizes the withholding of "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." Home addresses and phone numbers, as well as Social Security numbers, are generally subject to categorical redaction pursuant to KRS 61.878(1)(a).
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013).
In most circumstances, employee evaluations and medical information in personnel files are subject to redaction under KRS 61.878(1)(a).
Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006); 13-ORD-063; 07-ORD-192. While an application for elective office may, in some instances, reduce an individual's privacy interest in certain records, 2 Mr. Hermes has articulated no relevance of Mr. Besecker's employee evaluations or medical records to whatever unspecified office Mr. Besecker is purportedly seeking. We therefore find no heightened public interest to overcome the recognized privacy interest in medical records or employee evaluations, and thus affirm their redaction from Mr. Besecker's personnel file.
We find improper, however, the nonspecific reference to "other personal/private information." KRS 61.880(1) provides that any agency response denying inspection "in whole or in part" must "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. " (Emphasis added.) A response that fails to identify the withheld material does not satisfy the explanation requirement. 17-ORD-146. Furthermore, the Board did not respond to a request from this office to clarify what information was withheld. Therefore, we find both procedural and substantive violations of the Open Records Act, as the agency failed to meet its burden of proof under KRS 61.880(2)(c) for the unspecified redactions made pursuant to KRS 61.878(1)(a). 17-ORD-216.
As to the alleged inadequacy of the Board's response to the second request, we find no error if, indeed, all responsive records have already been provided, as the Board alleges. A public agency need not provide the same records twice in response to a duplicative request, in the absence of some justification. 95-ORD-47. To the extent that the Board incorporates its earlier insufficient description of the "other personal/private information," however, we find the same error in the failure to identify the withheld information and to meet its burden of proof.
We conclude, therefore, that the Board committed procedural violations of the Open Records Act due to the untimeliness of its disposition of Mr. Hermes' initial request and its failure to cite KRS 61.878(1)(l) in connection with the denial of a private reprimand. The Board committed both substantive and procedural violations by withholding unspecified "other personal/private information" from a personnel file. In other respects, the Board complied with the Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(l) exempts "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
2 In 11-ORD-046, we held that résumés submitted by candidates for appointment to a vacant elective office had a direct bearing on the qualifications of those persons for that public office, and therefore the heightened public interest in the candidates' qualifications outweighed any purported privacy interest in their application materials.