Request By:
Mr. Jack C. Blanton
Vice Chancellor for Administration
110 Administration Building
University of Kentucky
Lexington, Kentucky 40506
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Keith K. Schillo, an Associate Professor at the University of Kentucky, has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his April 18, 1991, request to inspect certain documents in the possession of the University of Kentucky. Those records are identified as "letters of evaluation directed to [Mr. Schillo's] department chair from departmental faculty and from indivduals outside the University that were part of [his] promotion and tenure dossier in 1989 and [his] 1989-90 evaluation." In support of his argument that he is entitled to inspect these documents, Mr. Schillo cites KRS 61.878(3) which provides state employees with a general right of access to any record which relates to them, regardless of whether the record is exempt or nonexempt.
Although you provided Mr. Schillo with copies of formal evaluation documents, including letters of evaluation written by his department chairman and dean, you denied that portion of his request pertaining to faculty evaluation letters in a response dated April 23, 1991. Noting that prior requests for records of this nature have been denied on the grounds that such documents are preliminary and therefore exempt pursuant to KRS 61.878(1)(g) and (h), you responded to Mr. Schillo's argument that KRS 61.878(3) mandates disclosure of all materials relating to him, stating:
KRS 61.878(3) was enacted by the Kentucky General Assembly in 1986. 1986 Kentucky Acts, Chapter 494, Section 24. Chapter 494 was a comprehensive revision to the state personnel laws contained in Chapter 18A of the Kentucky Revised Statutes. Chapter 18A deals with state personnel employed by the executive branch of state government; the state merit system; the state Personnel Board; and life insurance, health insurance and retirement for those employees. Chapter 494 made numerous changes to KRS 18A and one change in the Kentucky Open Records Act. The University does not believe that the 1986 addition of KRS 61.878(3) to the Open Records Act was meant to change the application of the Open Records Act to UK faculty evaluation letters, which are otherwise exempt pursuant to KRS 61.878(g)(h). We believe it was the clear intent of the Legislature in its enactment of Chapter 494 to make changes only for those employees subject to the laws and regulations of the State Department of Personnel.
It is your position that both the Legislature and this Office have recognized the unique characters of the academic evaluation process, which is grounded in the principle of confidentiality. You assert your continued reliance on KRS 61.878(1)(g) and (h) to authorize nondisclosure of the peer evaluations Mr. Schillo wishes to inspect.
In his letter of appeal to this Office, Mr. Schillo rejects these arguments. In a lengthy analysis of our prior treatment of similar requests and the applicability of KRS 61.878(3) to his request, he maintains that a review of our opinions demonstrates that the University of Kentucky is a public agency and is subject to all of the provisions of the Open Records Act, including KRS 61.878(3). Arguing that the University enjoys no special immunity from this provision, he notes:
[T]he Attorney General has opined that: 1) the University of Kentucky and other state agencies are equal under the Open Records Act; 2) the employees of the University of Kentucky and employees of other state agencies are equal under the Open Records Act; 3) the records of employees of the University of Kentucky and records of employees of other state agencies are equal under the Open Records Act; 4) the evaluative records written by superiors and peers of the University of Kentucky and by superiors and peers of other state agencies are equal under the Open Records Act, including those records containing personal expressions of opinion that the agency may prefer to keep confidential.
(Emphasis in original.) Citing a recent United States Supreme Court opinion,
University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182, 107 L. Ed. 2d 571, 110 S. Ct. 577 (1990), he refutes your argument that disclosure of peer review materials compromises legitimate university personnel processes. He concludes with the following observation:
As reasonable men and women, we must assume that the state legislature and the Office of the Attorney General are comprised of competent individuals who knew exactly what they were doing when they passed KRS 61.878(3), or who knew exactly what they did and did not cite and state in their legal opinions concerning Open Records. For Mr. Blanton to find it necessary to impune otherwise as his sole basis for granting the University of Kentucky special immunity from 61.878(3) attests to the incredibly weak position he is maintaining.
Mr. Schillo asks that we review the University's partial denial of his request to determine if this decision is consistent with the Open Records Act. For the reasons outlined below, we conclude that you properly denied that portion of his request pertaining to peer review materials.
OPINION OF THE ATTORNEY GENERAL
Contrary to Mr. Schillo's apparent belief, this is an issue of first impression. Although the Office of the Attorney General has previously construed KRS 61.878(3) to apply to persons employed by the executive branch of state government, OAG 87-50; OAG 90-83, we have never been asked to rule on the applicability of that provision to persons outside of the executive branch. There is, of course, authority to support the view that professors employed by the University of Kentucky are state employees.
Talbott v. Public Service Commission, 291 Ky. 109, 163 S.W.2d 33 (1942) [overruled on other grounds, 206 S.W.2d 75 (Ky. 1947)];
Pardue v. Miller, 306 Ky. 100, 206 S.W.2d 75 (1947). However, resolution of the instant appeal does not turn on this single issue, but on the construction of a number of interrelated statutes.
KRS 61.878(3) provides that none of the exceptions to the Open Records Act codified at KRS 61.878(1)(a) through (j):
[S]hall be construed to deny, abridge or impede the right of a state employe, 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. Such 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 state employe, applicant or eligible shall not have the right to inspect or to copy any examination.
We have interpreted this provision on two prior occasions, each involving state personnel employed by the executive branch. In OAG 87-50, an employee of the Labor Cabinet requested access to her personnel records. The Cabinet denied her request, relying on KRS 61.878(1)(g) and (h). The Attorney General concluded that the Cabinet erred in withholding the requested documents, observing:
No doubt . . . [the requester] could not have seen such preliminary material prior to the 1986 amendment to KRS 61.878 but the statutory amendment specifically states that it overrides any of the exceptions to public inspection set forth in KRS 61.878, at least where a state employee is involved.
OAG 87-50, p.3. Similarly, in OAG 90-83, we upheld the right of a state employee, in this case an employee of the Tourism Cabinet, to inspect her personnel file. Neither of these appeals reached the issue herein raised: Whether KRS 61.878(3) is applicable to state employees not governed by Chapter 18A of the Kentucky Revised Statutes.
KRS 61.878(3) was enacted by the Kentucky General Assembly in 1986 along with a comprehensive revision to the state personnel laws contained in Chapter 18A of the Kentucky Revised Statutes, and is cross-referenced at KRS 18A.020, which provides that the records of the Personnel Department are subject to the Open Records Law. Although the first sentence of KRS 61.878(3) refers to "state employees, " it also references "eligible on a register." Succeeding language in the statute refers to "work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores and preliminary and other supporting documentation. " Much of this language has relevance only to Chapter 18A personnel policies and procedures. It is entirely foreign to university personnel policy. This suggests that the General Assembly intended to limit the scope of KRS 61.878(3) to state personnel governed by Chapter 18A.
Moreover, KRS 164.225 vests exclusive jurisdiction of appointments, qualifications, compensation, promotions, and retirement programs in the Board of Trustees of the University of Kentucky. That section provides:
Anything in any statutes of the Commonwealth to the contrary notwithstanding, the power over and control of appointments, qualifications, salaries and compensation payable out of the state treasury or otherwise, promotions and official relations of all employees of the University of Kentucky, as provided in KRS 164.220, and, subject to any restrictions imposed by general law, the retirement age and benefits of such employes, shall be under the exclusive jurisdiction of the board of trustees of the University of Kentucky, which shall be an independent agency and instrumentality of the Commonwealth.
See also, KRS 164.365 (vesting exclusive jurisdiction of these matters in the governing boards of other state universities). Clearly, the Personnel Department of state government has no authority to regulate university personnel matters, and any changes wrought in the laws pertaining to state employees governed by Chapter 18A have no bearing on university employees. Accordingly, KRS 18A.020 and, to the extent that it merely cross references the latter provision, KRS 61.878(3) are inapplicable to university personnel policies and procedures.
We do not mean to suggest that the University of Kentucky, as a public agency within the meaning of KRS 61.870(1), is not subject to the Open Records Act generally. As Mr. Schillo correctly notes, we have previously held that "there is nothing in these statutes (KRS 164.100-KRS 164.280) granting the University special immunity from the Open Records Law. " OAG 78-179, p.2. Simply stated, the question is whether the 1986 amendments, found at KRS 18A.020 and KRS 61.878(3), preclude the University from properly withholding records under KRS 61.878(1)(a) through (j) when a request is made by a university employee for records pertaining to him. We believe that they do not.
Prior to enactment of KRS 61.878(3), this Office consistently upheld the right of universities, or institutions similarly situated, to withhold peer review and other evaluative materials pursuant to KRS 61.878(1)(a) and (h). OAG 77-394; OAG 78-738; OAG 80-614; OAG 82-204; OAG 82-211. In these opinions, we recognized that a university is entitled to withhold such records to protect the privacy of faculty members who write letters of evaluation and to prevent the release of preliminary recommendations and preliminary memoranda in which opinions are expressed. Since enactment of KRS 61.878(3) we have, on at least one occasion, recognized the continued propriety of asserting these exemptions. In OAG 89-90, the Lexington-Herald Leader requested access to, among other things, performance evaluations of a number of employees of the Magoffin County Schools. Although such individuals are considered state employees, they are not governed by Chapter 18A. We did not find KRS 61.878(3) to be dispositive of the appeal, but instead held that inspection of employee evaluations could be properly denied. We affirmed the reasoning of OAG 77-394, in which we approved Eastern Kentucky University's decision to withhold annual performance evaluations from a teacher who had requested them.
We are mindful of the growing trend in the law favoring disclosure of peer review materials, typified by the United States Supreme Court's recent decision in
University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182, 107 L. Ed. 2d 571, 110 S. Ct. 577 (1990). There, the court balanced the competing interests of the university, in insuring the proper functioning of the peer review process, and the victims of discrimination, in uncovering abuses in institutions of higher learning, and held that a public university, responding to an EEOC subpoena, did not enjoy any privilege against disclosure of peer review materials relevant to charges of racial or sexual discrimination in tenure decisions. Commenting on the failure of Congress to carve out an exception to the board subpoena powers of the EEOC for peer review materials, the court held:
[W]e stand behind the breakwaters Congress has established: unless specifically provided otherwise in the statute, the EEOC may obtain 'relevant' evidence. Congress has made the choice. If it dislikes the result, it of course may review the statute.
So we must stand behind the breakwater the General Assembly has established. The language of KRS 61.878(3), when read in historical context, inescapably leads us to the conclusion that the provision applies only to state personnel employed by the executive branch of state government and governed by Chapter 18A of the Kentucky Revised Statutes. This position is consistent with KRS 164.225, which vests the university's board of trustees with exclusive jurisdiction over personnel matters, and our prior opinions on the subject.
We concede that this issue is one of considerable ambiguity and that reasonable minds may differ as to the proper construction of KRS 61.878(3). Legislative review or judicial interpretation of the provision would fully and finally resolve this ambiguity. We remain convinced, however, that it was not the General Assembly's intent to open a "pandora's box" in enacting the disputed provision, and therefore conclude that the university properly withheld the peer review materials Mr. Schillo requested.
As required by statute, a copy of this opinion will be sent to Mr. Keith K. Schillo. Mr. Schillo has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).