Opinion
Opinion By: Andy Beshear, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Department of Corrections ("DOC") violated the Open Records Act in partially denying Probation and Parole Officer Charity Whitehill's April 12, 2018, request for the following "as pertains to Kristine Charity Whitehill": 1) the Kentucky Correctional Institution for Women ("KCIW") Prison Rape Elimination Act ("PREA") Report (July 2016-November 2016); and 2) the CRTC Central Region Training Center ("CRTC") Supervisor (Jessica Johnson) Hostility Report (April-November 2017). Ms. Whitehill also requested, "from posting 53491BR[,] Corrections Program Administrator," for the successful candidate (Jessica Johnson) and herself, the following records: 1) interview notes; 2) Certified Register Report; 3) Screening Criteria Worksheet; 4) Internal Mobility Form; 5) "Proof of education" for Jessica Johnson; 6) interview questionnaire worksheets; 7) Completed Prior Employment Reference Check Forms; and 8) the "Recommendation Memo. " By letter directed to Ms. Whitehill on April 18, 2018, Katherine Williams, DOC Open Records Request Coordinator, confirmed receipt of Ms. Whitehill's request. Ms. Williams further advised that DOC "has five (5) business days, excluding weekends and legal holidays," in which to issue a written response to a request made under the Open Records Act per KRS 197.025(7). Quoting 501 KAR 6:020, Corrections Policy & Procedure (CPP) 6.1, V.I.D.1.c., which requires DOC to respond in compliance with KRS 197.025(7), "including a statement of the date the record will be available and an explanation of the delay," Ms. Williams indicated that DOC would need "additional time to locate and compile any documents that are responsive to your request. " Without further comment, DOC agreed to provide a final response "no later than April 26, 2018."
Absent from this initial response by DOC was any reference to KRS 61.872(5), upon which it relied in delaying access; DOC did not invoke KRS 61.872(5) on appeal. DOC also failed to satisfy all of the requirements of this exception to KRS 61.880(1). Specifically, KRS 61.872(5), the only provision of the Act that authorizes postponement of access to public records beyond three business days, provides that if public records are "in active use, in storage or not otherwise available," the official custodian of the public agency "shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " (Emphasis added.) Although DOC specified the date by which records would be made available, DOC did not specify which permissible reason for delay applied, if any. "Whether any delay beyond the statutory deadline was warranted turned on the adequacy of the [agency's] explanation." 14-ORD-226, p. 4; 16-ORD-153. The need to review and redact did not constitute a detailed explanation as "[t]he need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3; 02-ORD-217; 10-ORD-138; 12-ORD-227; 14-ORD-047; 16-ORD-206. While a reasonable extension of time may have been justified, the record on appeal is devoid of any facts upon which to base such a finding.
By letter directed to Ms. Whitehill on April 26, 2018, DOC advised that responsive interview notes, the certified register report, and the interview questionnaire worksheets "are exempt from public disclosure. The interview questionnaire and worksheets are considered 'examination materials' and not subject to disclosure pursuant to KRS 18A.020(4) and 61.878(1)(l), 17-ORD-093." Citing KRS 61.878(1)(a) and prior decisions by this office, DOC denied access to "educational transcripts and the internal mobility form for Jessica Johnson[.]" Ms. Williams explained that "prior employment reference check forms were not required before July 1, 2017," and such documents therefore do not exist. Again relying upon prior decisions by this office, DOC asserted that a public agency cannot provide that which it does not have or which does not exist. 1 DOC agreed to provide Ms. Whitehill with a copy of her "internal mobility form" and the "recommendation memo. " However, DOC redacted the names of the unsuccessful applicants from the memo pursuant to KRS 61.878(1)(a) and 96-ORD-1. 2
In addressing the "KCIW PREA Report and Retaliation Report" and the "CRTC Supervisor Hostility Report," DOC stated that it was unable to locate any records that were "specifically labeled as such." However, Ms. Williams explained to Ms. Whitehill that DOC has documents available from 2016, "involving internal investigations originating from KCIW labeled 'Possible Staff Sexual Harassment' and 'Possible Retaliation' that contain your name." Likewise, DOC was unable to locate any document entitled, "Hostility Report," but "a report from the Division of Personnel was provided" to Ms. Williams "that was titled 'Investigation - Charity Whitehill/Jessica Johnson.'" Ms. Williams asked Ms. Whitehill to contact her if she did not wish to receive copies of these records. Lastly, Ms. Williams indicated that "employee names" were redacted from the above-mentioned reports on the basis of KRS 61.878(1)(a) because the parties conducting the investigations determined that no policy violations were committed. 3
This office received Ms. Whitehill's appeal on May 4, 2018. Citing KRS 61.878(3) and (1)(g), 4 as well as KRS 18A.020(4), Ms. Whitehill alleged that in denying access to "supporting documentation in the merit promotion process," including the "interview notes, certified register report, and interview questionnaire worksheet, " DOC violated her "rights as a State Employee pursuant to the Open Records Act. " 5 Ms. Whitehill also challenged the denial by DOC as to "educational transcripts and the internal mobility" for Jessica Johnson, the successful candidate. Upon receiving notification of Ms. Whitehill's appeal from this office, DOC again supplemented its response by letter dated May 22, 2018, via Assistant General Counsel Amy V. Barker, Justice and Public Safety Cabinet. Attached to Ms. Barker's May 22, 2018, appeal response was a copy of Ms. Williams' May 22, 2018, most recent supplemental response to Ms. Whitehill. In her May 22 letter, Ms. Williams advised that an "interview note concerning" Ms. Whitehill and the "internal mobility form for the successful candidate" would be made available upon receipt of the copying fee and postage costs pursuant to KRS 61.874(3). In addition, DOC agreed to provide Ms. Whitehill with "the previously provided investigation reports . . . without redaction and without charge." DOC also enclosed the "recommendation memo. " In accordance with 40 KAR 1:030 Section 6, any issues regarding the records that DOC either attached to its April 26, 2018, response to Ms. Whitehill, or agreed to provide to her upon receipt of payment, are moot. 6 Accordingly, our analysis will not include such records or the related issues.
In her May 22 appeal response, Ms. Barker reaffirmed the agency's position regarding interview questions and responses for the position at issue. DOC reiterated that said records "are considered 'examination materials' and not subject to disclosure pursuant to KRS 61.878(3), which gives an employee or applicant for employment the right to inspect and to copy records pertaining to him, with the exception of examination materials." According to DOC, the interview questions and responses fall within the exclusionary language for "examination materials" because "they are used to evaluate an applicant's qualifications for the position and will be used again in future interviews for the position or other positions with the need for similar information." Ms. Barker further advised that DOC is offering the "certified register report" upon receipt of payment "with redactions for unsuccessful applicants that Ms. Whitehill did not request and that do not relate to her." Because Ms. Whitehill indicated on appeal that she was requesting her own and that of the successful candidate, and that is what DOC has now offered, Ms. Barker asserted that any related issues are now moot per 40 KAR 1:030 Section 6. Regarding the educational transcripts for the successful applicant, Ms. Barker explained that an educational transcript contains "much more personal information than the educational level achieved by the successful candidate, including classes taken at an institution and all grades earned." DOC asserted that information of that nature is not subject to public inspection. Ms. Barker stated that the applicant's transcript is not used as part of the interview process. Rather, the "internal mobility form and application contain the educational information for an applicant for a position." 7
The remaining issues are whether DOC properly withheld the requested interview questionnaire and worksheets on the basis of the exclusionary language found in both KRS 18A.020(4) and/or KRS 61.878(3), and whether DOC properly withheld application materials or information regarding unsuccessful applicants for the position that Ms. Whitehill sought. 8 To clarify, "[n]either the courts nor this office have determined that the contents of a public employee's personnel file are entirely shielded from disclosure by operation of KRS 61.878(1)(a)." 08-ORD-178, p. 3. Rather, this office has determined that only those records, or portions of records, in a public employee's personnel file that are unrelated to the performance of his or her public duties can be properly withheld under this exception. Id. In 03-ORD-012, the Attorney General held that the Berea Independent School District improperly denied a request for the complete personnel records of named employees per KRS 61.878(1)(a). 9
Quoting extensively from 97-ORD-66, the Attorney General held in 03-ORD-012, in relevant part, that a "public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's [résumé] reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. . . ." 03-ORD-012, p. 6; 08-ORD-170; 11-ORD-210. These opinions are premised on the idea "that a person does not typically work, or attend school, 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, p. 3; 00-ORD-090. However, this office has consistently affirmed the withholding of public employees' educational transcripts on the basis of KRS 61.878(1)(a), per the reasoning found in 00-ORD-126 (following OAG 89-90 in affirming the agency's refusal to furnish a copy, "redacted or otherwise," of requested transcripts) and reaffirmed in 14-ORD-225. See 99-ORD-113 (public employees have a "cognizable privacy interest in test scores and examination results when those scores or results are disclosed in conjunction with the employee's name or other personally identifiable information"); 00-ORD-126 ("public's right to know does not extend to such minutia as classes taken and grades received"); 15-ORD-100. DOC did not violate the Act in denying Ms. Whitehill's request for Ms. Johnson's educational transcript(s).
With regard to records that relate to her, Ms. Whitehill is a public agency employee. KRS 61.878(3), the "exception to the exceptions" codified at KRS 61.878(1), vests a public employee with a broader right of access to records that relate to her than a member of the general public has. 10 When applicable, 61.878(3) overrides all of the statutory exceptions to public inspection set forth at KRS 61.878(1), except KRS 61.878(1)(k) and (l), neither of which applies here. With the exceptions of "any examination or any documents relating to ongoing criminal or administrative investigations by an agency," Ms. Whitehill is entitled to any record that relates to her, 11 "including preliminary and other supporting documentation. "
In 02-ORD-168, the Attorney General construed the relevant exclusionary language as follows:
While we therefore cannot affirm the [public agency's] denial of [the requester's] request on the basis of KRS 61.878(1)(g), we find that the exclusionary language in KRS 61.878(3) supports its position. Webster's New World Dictionary 487 (2d ed. 1974) defines the noun "examination" as "an examining or being examined; investigation; inspection; scrutiny; inquiry; testing," and the verb "examine" as "to look at or into critically or methodically in order to find out the facts, conditions, etc., of; . . . scrutinize." While an examination is commonly understood to involve an objective assessment of knowledge and skill, these definitions suggest a broader meaning which encompasses the subjective elements of the promotional examination and records relating thereto that are the subject of this appeal. We conclude that [the requester's] broad right of access to records relating to him under KRS 61.878(3) must here yield to the exclusionary language found in the last sentence of that provision because the record he seeks is an examination.
Id. , pp. 8-9; 98-ORD-137 (Kentucky State Police properly denied request for sergeant's promotional examination per KRS 61.878(3)); 08-ORD-010. "By its mandatory terms, KRS 61.878(3) authorizes public agencies to withhold examinations of any kind or character from the public employee to whom they relate." 08-ORD-010, p. 7; 04-ORD-045 (affirming public agency's reliance on KRS 18A.020(4) and KRS 61.878(1)(i) in denying a requester access to interview questions and the answer sheets used in the promotional process). Compare 14-ORD-208. In 04-ORD-045, as in this case, the agency maintained that the requested interview questions and answer sheets were considered "'examination materials,' in that the documents were used to evaluated an applicant's qualifications for the position and maybe used again in future interviews and to release the questions and answers provided by the applicants would give an unfair advantage to applicants in future interviews. " Id. , pp. 5-6. The record on appeal presents no basis to depart from this governing precedent; DOC did not violate the Act in denying Ms. Whitehill's request for "Interview Questionnaire Worksheets, " because those records are properly characterized as "examination materials" under KRS 18A.020(4) or an "examination" under KRS 61.878(3) as construed in existing legal authority. See 17-ORD-093. Based upon the foregoing, this office affirms the ultimate disposition of Ms. Whitehill's request.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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 On appeal, DOC correctly observed that Ms. Whitehill did not specifically challenge its denial as to the screening criteria worksheet and prior employment reference check forms, "but out of an abundance of caution," DOC nevertheless reiterated that neither of these documents were required prior to July 1, 2017; DOC conducted the interviews for the position at issue on May 7, 2017. Accordingly, DOC did not create such records for these interviews. To substantiate this position, DOC enclosed a May 18, 2018, e-mail from Director of Training Bridget Gilliland, confirming the aforementioned timeline and further stating that "the only interview notes outside of the interview question response was a single note" regarding Ms. Whitehill that she wrote. DOC also included a copy of the May 5, 2017, Personnel Memorandum regarding the "Executive Branch Classified Hiring and Selection Procedure."
A public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6. Rather, the right to inspect attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency violates KRS 61.880(1) when it fails to advise the requesting party whether the records being sought exist, but discharges its duty under the Act in affirmatively indicating that certain records do not exist following a reasonable search, and explaining why if appropriate, just as DOC ultimately did here. See 99-ORD-98; 12-ORD-056. See Bowling v. Lexington-Fayette Urban Cnty. Gov't, 172 S.W.3d 333, 341 (Ky. 2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-037; 11-ORD-091; 16-ORD-134; compare Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); Cabinet for Health and Family Servs. v. Todd Cnty. Standard, Inc., 488 S.W.3d 1 (Ky. App. 2016)(affirming opinion and order enforcing 11-ORD-074); 12-ORD-195.
2 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."
3 The record on appeal does not contain sufficient information for this office to determine whether these redactions were justified under KRS 61.878(1)(a), nor did Ms. Whitehill challenge these redactions. However, DOC may wish to review Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006)(reaffirming the "case-by-case analysis required by the outstanding law on the Open Records Act," and, in particular, KRS 61.878(1)(a), and holding that "bright-line rules permitting or exempting disclosure [of public records] are at odds with controlling precedent."); and Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013)(reaffirming that ORA forbids "blanket" denials but characterizing redaction policy of city as "categorical" and thus affirming its withholding of contact information, social security numbers, driver's license numbers, etc. of victims, witnesses, and uncharged suspects appearing in police department's arrest and incident reports). See 17-ORD-258.
The Attorney General has applied Kentucky New Era in affirming the categorical redaction of personal information of private citizens in a variety of contexts in the absence of any basis upon which to distinguish it. However, in Kentucky New Era the City was providing the names of private citizens and redacting the associated personal information. This office has long recognized that "a person's name is personal but it is the least private thing about him . . . [and] should not be deleted from a public record unless there is some special reason provided by statute or court order (i.e., adoption records)." OAG 82-234, p. 3; 12-ORD-180 (agency failed to provide "specific facts or circumstances to demonstrate that complainant's name" was properly withheld). In general, this office has assigned little weight to the privacy interest in a name appearing in a public record without associated personal information. That is especially true when the names in dispute are those of public employees.
4 KRS 61.878(1)(g) authorizes the nondisclosure of "[t]est questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination before the exam is given or if it is to be given again[.]" See 07-ORD-107; 09-ORD-198.
5 KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
(Emphasis added.)
6 40 KAR 1:030 Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter."
7 Insofar as the internal mobility form that DOC provided to Ms. Whitehill contains the requested "Proof of education for Jessica Johnson," the successful candidate, the related issues have been rendered moot per 40 KAR 1:030 Section 6. See n. 5. However, insofar as the responsive transcript(s) remains in dispute, our analysis will proceed.
8 KRS 61.878(3) largely mirrors KRS 18A.020(4), but has broader application, extending to all public agency employees and not only those governed by Chapter 18A of the Kentucky Revised Statutes. Ms. Whitehill enjoys an enhanced, but not absolute, right of access to records relating to her under both statutes.
9 The Department of Corrections appealed 03-ORD-012 and the Kentucky Supreme Court affirmed our interpretation of KRS 61.872(2) in Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008). See 08-ORD-175.
10 KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
11 In 05-ORD-181, this office analyzed "relates" in this context as follows:
[T]he term "relates" found in KRS 61.878(3), . . . , is far more expansive in its scope than the term "contains a specific reference to" found in KRS 197.025(2) and restricting an inmate's right of access to public records in which his name appears. . . . The term "relate" is defined as having "connection, relation, or reference," . . . , and does not always require specific references in the form of a name .
Id. , pp. 6-7 (emphasis added). See 17-ORD-199.