Request By:
Mr. Jack C. Blanton
Vice President for Business Affairs
and Treasurer
110A Administration Building
University of Kentucky
Lexington, Kentucky 40506
Opinion
Opinion By: Steven L. Beshear, Attorney General; BY: Carl Miller, Assistant Attorney General
Dr. James E. Brennan, through his attorney, the Honorable William C. Jacobs, has appealed to the Attorney General under KRS 61.880 the denial of his request to inspect certain records in your custody as official custodian of records of the University of Kentucky. The records are described as Dr. Brennan's complete personnel file including, but not limited to, all letters from faculty members.
By letter dated October 20, 1981, the Honorable John C. Darsie, Jr., General Counsel, advised you that the faculty letters could only be released to Dr. Brennan by the University in one of two circumstances:
"(a) If the individual members of the faculty consent to the release of these letters.
(b) In the event the letters are ordered to be produced by a court of competent jurisdiction. "
By letter dated November 17, 1981, Mr. Darsie advised Mr. Jacobs that in an attempt to comply with the Open Records request of Dr. Brennan you wrote letters to 19 named faculty members of the Department of Mathematics asking permission to release their letters of evaluation; that 4 of the 19 named faculty members had given permission for the release of their letters. Mr. Darsie sent a copy of the four letters to Mr. Jacobs and stated that he must decline to furnish copies of the letters of the 15 other faculty members.
Under this state of facts the Attorney General is now required to give an opinion as to whether the 15 letters of evaluation were properly withheld from Dr. Brennan's inspection.
DISCUSSION
The provisions of the Kentucky Open Records Law which are pertinent to this question are the following:
"KRS 61.884. Person's access to records relating to him. Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878."
"KRS 61.878. Right of inspection only on order of court. (1) The following public records are excluded from the application of KRS 61.870-61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
"(a) public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
* * *
(b) preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In past opinions this office has taken the position that KRS 61.884 concerning a person's right to access to records in which he is mentioned by name is so severely limited as to be almost meaningless by its final clause -- "subject to the provisions of KRS 61.878." This statute seems to give a person the right to seek records containing his name and then in the same breath allows public agencies to invoke all of the exemptions of KRS 61.878, thus putting the named individual in the same position as any other member of the public. Under such an interpretation of the statute we held in OAG 77-394 that a faculty member of Eastern Kentucky University did not have a mandatory right to inspect her annual evaluations for three years. We said:
"Since the public is not entitled to inspect a teacher's evaluation, the teacher has no more right than the public to inspect the evaluation under the Open Records Law. "
We were forced to consider this position again in OAG 79-128 which concerns the denial of inspection of certain records pertaining to the promotional process for the position of assistant chief of police. Treating more directly with KRS 61.884, we said:
"Under this statute a person is entitled to inspect a document in which he is mentioned unless it is exempt under the provisions of the Open Records Law. If the disclosure of the document would constitute a clearly unwarranted invasion of the personal privacy of any person, for instance the person who created the document, it is exempt under KRS 61.878(1)(a). If a document is composed of preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended, it is exempt under KRS 61.878(1)(h). We believe that both of these exemptions apply in this case."
To our knowledge there has been no court decision interpreting the open records law on this question. We have been told by university authorities that peer evaluation is a generally accepted practice of colleges and universities throughout the nation and that generally the peer evaluations are accorded confidentiality.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that the fifteen faculty letters which you have withheld from inspection by Dr. Brennan are exempt from his right to inspect by KRS 61. 878(1)(a)(h). You properly withheld inspection of the records because the university is entitled to protect the privacy of the faculty members who wrote the letters of evaluation and because the letters contain preliminary recommendations and preliminary memoranda in which opinions were expressed.
As directed by statute, a copy of this opinion is being sent to the requester through his attorney, Mr. Jacobs, and the requester has the right to challenge this opinion in court under KRS 61.880(5).