Request By:
Open Records Appeal
File Identification No. 90-190
Paul F. Fauri, Esq., Counsel for George Stockton
P.O. Box 1304
Frankfort, Kentucky 40602Drexel R. Davis, Jr.
Principal Assistant to the Official Custodian of Records
Kentucky Transportation Cabinet
State Office Building
Frankfort, Kentucky 40622
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Gerard R. Gerhard, Assistant Attorney General
By letter of January 26, 1990, Paul F. Fauri, Esq., has appealed to this office regarding your responses on behalf of the Kentucky Transportation Cabinet to his requests to inspect certain of the Cabinet's records.
KRS 61.880(2) provides, in substance and in part, that the Attorney General shall, upon request of one whose request to inspect a public record has been denied, issue a written opinion stating whether the denying agency acted consistent with Open Records provisions.
FINDINGS IN BRIEF
The Kentucky Transportation Cabinet did not act other than consistent with Open Records provisions in its responses regarding a request for copies of records that had not been inspected, as the opportunity to have copies of public records is ancillary to their inspection. However, in not citing specific statutory exceptions upon which denial of inspection of "promotional bulletin comparison sheets" was based, the Cabinet failed to act consistent with Open Records provisions. Under the specific facts involved, the Transportation Cabinet should promptly make available to the requester, a complete Promotional Bulletin Comparison Sheet for the position in question. We do not by this opinion hold that evaluation recommendation comments contained on promotional bulletin comparison sheets are generally subject to public inspection.
FACTUAL BACKGROUND
By a letter dated January 4, 1990, addressed to Judy R. Dawson, of the Transportation Cabinet's Office of Personnel Management, and a request form dated January 4, 1990, Paul F. Fauri, Esq., asked to be provided copies of:
All applications for the vacant position of Administrative Section Supervisor (35-610-09-01-01-00-001), promotional bulletin 89-0451 attached. Also all guidelines, criteria, etc. used for selecting the person to fill this position.
The words "to inspect" following the phrase "I request" on the request form, had been specifically "x'd out" or crossed through, making the request specifically for copies, and not to "inspect, " records subsequently described on the request form.
You evidently promptly responded, at least in part, to Mr. Fauri's request of January 4, 1990, as indicated by his letter of January 15, 1990, addressed to you thanking you for a prompt response. Mr. Fauri's letter of January 15, 1990, however, stated, in part:
I did want to ask for clarification on my request as to the criteria, guidelines, etc. for selecting the person to fill the position. You have forwarded to me a promotional bulletin comparison sheet for Thomas Murphy. I would appreciate copies of the promotional bulletin comparison sheets for the other four applicants. I also would like copies of any of the guidelines or criteria that are used for making these comparisons.
I am also requesting a copy of the organizational chart for the Division of Service and Supply in the Department of Administrative Services. In addition, I would appreciate copies of any administrative orders that set forth this organizational structure. I am also aware that some agencies list positions for each branch, section and unit in the organizational structure and if copies are in existence, I would appreciate them also.
[Emphasis added.]
By letter of January 19, 1990, Mr. Fauri indicated, in part:
This letter is in response to your response to my open records request of January 15, 1990. After I appeared at your office today you advised me by letter that I was not able to receive the promotional bulletin comparison sheets for the unsuccessful job applicants. As I mentioned to you, I am representing one of the unsuccessful job applicants. By this letter I am requesting a copy of George Stockton's promotional bulletin comparison sheet. As I believe you are aware, I represent Mr. Stockton.
By request form dated January 19, 1990, Mr. Fauri asked to inspect the "Organizational chart for the Division of Service and Supply."
By letter of January 19, 1990, you indicated to Mr. Fauri that you were furnishing a copy of the most recent organizational chart for the Division of Service and Supply, but that you could not locate any administrative orders that establish the organizational structure of the division. You also indicated that information provided in promotional bulletin 80-0451, contained the basic guidelines for employee evaluation. Regarding that part of Mr. Fauri's requests that sought "promotional bulletin comparison sheets" for the unsuccessful applicants for the position in question, you indicated:
The Transportation Cabinet's personnel office has a policy of not releasing comparison sheets for unsuccessful job applicants as this type of information has been deemed confidential. It cannot be made public without the employee's permission, a ruling by the Attorney General, or a court order.
[Emphasis added.]
You indicated further:
I apologize that portions of your open records request cannot be fulfilled due to either the confidentiality or the non-existence of the requested material.
In a letter to Mr. Fauri dated January 24, 1990, regarding "Open Records Request," you indicted to Mr. Fauri, apparently in relation to his January 19, 1990 letter, in which Mr. Fauri sought the promotional bulletin comparison sheet for his own client (George Stockton, an unsuccessful applicant for the position to which Mr. Fauri's requests relate), you indicated:
The Transportation Cabinet's policy of not releasing information concerning unsuccessful job applicants still applies to your recent Open Records Request. However, Mr. George Stockton would be able to receive a copy of his own comparison sheet from the Transportation Personnel Department.
[Emphasis added.]
Mr. Fauri's appeal followed.
A review of copies of denial letters received by this office did not locate a copy of any denial letter sent by the Transportation Cabinet to the Attorney General regarding Mr. Fauri's requests, or the denial thereof.
Copies of each of the items quoted from above were attached to Mr. Fauri's January 26, 1990 letter of appeal.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
Mr. Fauri's requests of January 4, 1990, and January 15, 1990, asked that he be supplied copies of records he apparently had not inspected. His request, upon the request form dated January 4, 1990, specifically had the phrase "to inspect" crossed out. This office has observed on repeated occasions, interpreting KRS 61.874(1), that the opportunity to have copies of public records is ancillary to their inspection. Since Mr. Fauri's requests of January 4th and January 15th 1990 were not to inspect public records, but for copies of records that had not been inspected, his requests were not proper requests under KRS 61.872(2). Accordingly, you did not act inconsistent with KRS 61.870 to 61.884 in your responses to such requests. OAG 76-375, OAG 90-31.
Mr. Fauri's letter of January 19, 1990, indicates he appeared at your office and asked to inspect or have copies of certain "promotional bulletin comparison sheets. " Since he appeared in person, we consider that his request at such time should have been taken as a request to inspect. In any event, you effectively denied inspection of such "comparison sheets. " You so indicated in your letters to Mr. Fauri dated January 19, 1990, and January 24, 1990.
Your letters of January 19, 1990, and January 24, 1990, did not state a basis of denial pursuant to one or more of the exceptions set forth in KRS 61.878, with an accompanying brief explanation of how such exceptions applied to the records withheld from inspection. A copy of your denial letters of January 19, 1990, and January 24, 1990, was not forwarded to the Attorney General. In these failings, the Transportation Cabinet failed to act consistent with KRS 61.870 to 61.884.
The remaining question concerns the propriety of the Cabinet's denial of inspection of "promotional bulletin comparison sheets" regarding unsuccessful applicants for a given Administrative Section Supervisor's position. The Cabinet released to Mr. Fauri, all information elements, in full text, shown upon such sheet, regarding the successful applicant for the position.
On March 28, 1990, the undersigned viewed at your office, a promotional bulletin comparison sheet for the position in question. The undersigned understands from a conversation with you, that there was only one such sheet regarding the position Mr. Fauri is concerned with. The sheet has columns for various information items, and the names of each of the five applicants for the position in question were recorded upon a single sheet, styled as a promotional bulletin comparison.
The comparison sheet here involved is of the nature of a form. There are columns upon the sheet headed substantially as follows: Name; present classification; present salary; age; sex and race; total state service; education; experience; special skills; and evaluation recommendations. All information recorded upon such sheet was provided to Mr. Fauri regarding the successful applicant for the possession. Regarding those who were unsuccessful in obtaining the position, all information upon the promotional bulletin comparison sheet has been provided to Mr. Fauri, except the evaluation recommendation comments for each of the four applicants who were not selected for the position.
Our views here are limited to the specific promotional bulletin evaluation sheet here involved, and the specific circumstances regarding the request to inspect it.
Here an unsuccessful applicant is attempting, with the aid of counsel, to evaluate the propriety of an agency personnel appointment. The information sought relates to individuals who are governmental employees. The "evaluation recommendation" comments were made available to Mr. Fauri regarding the successful applicant, whose inquiry was made in connection with representing an individual who was not selected for the position awarded to the successful applicant. The agency made no response consistent with Open Records provisions, in denying inspection of evaluation recommendations regarding un successful applicants for the position involved.
Only two bases under Open Records were potentially applicable to a denial of inspection of the evaluation recommendations here involved. KRS 61.878(1)(a), regarding records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, and KRS 61.878(1)(h), regarding preliminary recommendations. Such provisions, however, were not cited by the Cabinet as a basis for denying Mr. Fauri's request(s).
Upon review of the evaluation recommendations here involved, we do not believe the recommendations - involving as they do observations about state employees performance of governmental work, and given their specific character - are information of a personal nature within the meaning of KRS 61.878(1)(a). Further, where the evaluation recommendations of the successful applicant have been released, we see no basis for withholding such recommendations regarding the unsuccessful applicants - particularly in view of the specific character of the recommendations related to each of the individuals here involved. The evaluation recommendations here involved were no more personal in nature (61.878(1)(a)) in relation to the unsuccessful applicants, than they were in relation to the successful applicant.
We note also that where the request was by, or on behalf of, one directly affected by an administrative action, some "warrant" (61.878(1)(a)) for inspection of the records in question was shown.
Inspection of the evaluation recommendations regarding the successful applicant were not denied as preliminary recommendations (KRS 61.878(1)(h)), and we see no appropriate basis for denying inspection of such recommendations regarding the unsuccessful applicants, on such ground, under the facts here involved.
The Kentucky Transportation Cabinet should promptly make available to Mr. Fauri for his inspection, the promotional bulletin comparison sheet for the position here involved, to include all information elements shown thereon, including the "evaluation recommendations" for each of the individuals shown upon such sheet.
In future responses to requests to inspect public records, the Cabinet, if it denies inspection of any record, or part thereof, should follow the requirements of KRS 61.880(1) and (2). A given response should identify with particularity (e.g., as by date), the request it relates to, a specific exception from among those in KRS 61.878 should be cited if a denial is involved, and a brief explanation should be given regarding how an exception cited applies to a given record, or part thereof, withheld from inspection. A copy of any denial is to be promptly forwarded to the Attorney General.
The Kentucky Transportation Cabinet and Paul F. Fauri, Esq., may have a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Paul F. Fauri, Esq.