Request By:
Mr. A. Franklin Berry, Jr.
University Attorney
Western Kentucky University
Bowling Green, Kentucky 42101
Opinion
Opinion By: Frederic J. Cowan, Attorney General; D. Brent Irvin, Assistant Attorney General
Bruce L. Vincent and J. Dale Kendall have appealed your denial of their open records request to gain access to certain records in the custody of the university. These records concern certain university food service employees who allegedly purchased food from Western Kentucky University and resold it through their private catering business and were later reprimanded for this conduct. You denied the request based on KRS 61.878(1)(a), the personal privacy exemption.
FINDINGS IN BRIEF
Western Kentucky University's reliance on KRS 61.878(1)(a) to deny a request to inspect documents concerning misconduct on the part of public employees was not justified under the circumstances of this case. The public's right of access to the records requested outweighs any privacy interest the public employees might have in the records sought. Therefore, it is the opinion of the Attorney General that Western Kentucky University has not acted consistent with the provisions of the Open Records Act (KRS 61.870 to 61.884).
FACTUAL BACKGROUND
By letter addressed to Western Kentucky University, Office of Vice President on February 6, 1991, Mr. Vincent and Mr. Kendall requested the following documents:
Copies of memorandums or other documents to and from Western Kentucky University to and from Western Kentucky University employees, Susan Locke, Susan Parragin, and Kermit Thomas, on Class Katering Service, Classic Katering Specialist and L and K Catering, concerning the buying and selling of food from Western Kentucky University.
We have not been furnished with a copy of the original request letter. This portion of the request was quoted in your response. You denied this request by letter dated February 8, 1991, and stated:
In response to your request for communication addressed to the above-named individuals concerning the buying and selling of food from Western Kentucky University, there is no communication unless such does exist which is protected by KRS 61.878(a)(1).
Mr. Vincent and Mr. Kendall, pursuant to KRS 61.880(2), have appealed to our office your refusal to provide them access to the requested records and asked for an opinion from this office that you violated the provisions of the Open Records Act, KRS 61.870 to 61.884.
According to that letter, Mr. Vincent and Mr. Kendall are journalists and are investigating the illegal use of Western Kentucky University equipment and food by WKU food service employees who allegedly acquired food at wholesale prices through WKU, without authorization or a state sales tax number, and resold the food through their own private catering business. Mr. Vincent and Mr. Kendall indicated that the University's auditor had filed an initial complaint against the employees and that, as a result, an investigation and audit were conducted by an outside accounting firm. They futher indicate that the employees, and the employees' supervisor, were allegedly reprimanded by WKU president, Thomas Meredith, and that there exists correspondence from his office to that effect.
OPINION OF THE ATTORNEY GENERAL
Kentucky's Open Records Act provides that "[a]ll public records shall be open for inspection by any person, except as otherwise provided" in the act. KRS 61.872(1).
When a public agency receives an application to inspect public records, that agency is required by the Open Records Act to notify the applicant in writing of its decision either to comply with the request or to deny the request. If the agency decides to deny access to the public records, the written notification to the applicant "shall 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." KRS 61.880(1).
In your letter to Mr. Vincent and Mr. Kendall, you did include a statement of the specific exception relied upon to deny the request by citing the personal privacy exemption, contained in the Act, KRS 61.878(1)(a) [erroneously cited as "KRS 61.878(a)(1)"]. However, you failed to briefly explain how the exception applies to the records withheld as mandated by the act. Such an explanation is important because the agency has the burden of sustaining its denial. KRS 61.880(2). We presume that it would be the university's contention that releasing the public records requested would constitute an invasion of the personal privacy of the reprimanded university employees.
Among the public records excluded from the Open Records Act, and subject to inspection only upon order of a court of competent jurisdiction are, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a). This exception is strictly construed in favor of disclosure, "even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.882(4).
The only reported Kentucky case construing the personal privacy exemption, is
Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky.APP., 625 S.W.2d 109 (1981) (hereinafter referred to as " Board of Education "). In that case, the Urban County Human Rights Commission brought an action to compel the Fayette County Board of Education to disclose the county school systems personnel files for the purpose of permitting investigation of an employee's sex discrimination claim. In discussing the right of privacy, the Court of Appeals said:
"[The right of privacy] is based on the right of an individual to be left alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters in which it is not necessarily concerned. However, the right is not absolute. The rule defining the extent of the right is based on the premise that the standard by which the act is measured is that of a reasonable man. Since there is no hard and fast definition of the right, each case must turn on its own facts. Such a rule necessitates a balancing of the interests of the two parties in the litigation, as well as those of the public."
Board of Education, supra, at 110, quoting
Perry v. Moskins Stores, Inc., Ky., 249 S.W.2d 812 (1952). The Court adopted, "the test of balancing the interests of the parties as well as those of the public measured by the standard of a reasonable man. " Board of Education, supra, at 111. The balancing test utilized by the Kentucky Courts in construing the privacy exemption contained in the Kentucky Open Records Act is essentially the same type of test utilized by the federal courts in construing the Federal Freedom of Information Act. ("FOIA"). See ,
United States Dept. of Justice v. Reporter's Comm. for Freedom of the Press, 49 U.S. 749, 109 S. Ct. 1468, 103 L. Ed. 2d 774, (1989) (construing 5 U.S.C. § 552(b)(7)(c)) (hereinafter referred to as " Reporter's Comm. "). However, in Kentucky this balancing test is not "tilted in favor of disclosure, " as is done by some of the federal decisions. Board of Education, supra, 110-111.
In utilizing the balancing test described by the federal courts, the preliminary question is whether the interest in non-disclosure is a type of privacy the exemption is intended to protect. Reporter's Comm., 109 S. Ct. at 1476. Neither the Kentucky Open Records Act nor FOIA define personal privacy. The United States Supreme Court has defined the privacy interest protected by an exemption in FOIA as concerning information "intended for or restricted to the use of a particular person or group or class of persons: not freely available to the public." Reporter's Comm., 109 S. Ct. at 1476 and n. 16 (Quoting Webster's Third New International Dictionary , at 1804 (1976)).
Following the approach of the federal courts, we must first consider if an individual has a cognizable privacy interest that KRS 61.878(1)(a) was intended to protect. If so, that personal privacy interest must be balanced against the public's interest in disclosure. Relevant factors include whether a substantial public interest will be advanced by the disclousure, and whether the likely public impact will be significant.
Johnson v. United States Dept. of Justice, 739 F.2d 1514, 1519 (10th Cir. 1984). The identity of the requesting party is not a factor in assessing the public interests served by disclosure. Reporter's Comm., 109 S. Ct. at 1480. The public has an interest in being informed about what the government is doing. Id .
Turning to the facts presented, we are of the opinion that a public employee reprimanded after an investigation of alleged misconduct may have a cognizable personal privacy interest in records pertaining to a privately issued reprimand, because such a reprimand is intended for a particular class of persons. However, the employee's privacy interest is outweighed by the public's interest in being informed about the conduct of public employees when that conduct is job related.
Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment, and access to records pertaining thereto has been denied based on KRS 61.878(1)(a), this Office has consistently held that the public has a right to know about the employee's misconduct and any resulting disciplinary action taken against the employee. These opinions hold, either no privacy interest existed under the facts, or if a cognizable privacy interest existed, that it was outweighed by the public's right to be informed. See , e.g. , OAG 78-133 [which opined that if charges against a state police officer were serious enough to require disciplinary punishment, the public has a right to know what the charges are], and OAG 88-25 [which held that, "Disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know" ].
By contrast, in past opinions we have said that test scores for individuals applying for jobs within the classified service [OAG 78-382], a state police officer's performance evaluations [OAG 80-58], and a teacher's performance evaluations [OAG 86-15], were all exempt from disclosure because, in those instances, the employee's personal privacy interest outweighed the public's usual right of access.
We note also, that the
Kentucky Court of Appeals in City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982) and
Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953 (1983), has held that the public has a right to know what complaints have been made against public employees and what final action is taken against them. While these cases were concerned with exemptions other than privacy (specifically KRS 61.878(1)(g) and (h)), they do reflect the Kentucky courts' recognition of the public's right to be informed about disciplinary actions against public employees.
It is therefore the opinion of the Attorney General that Western Kentucky University's reliance on KRS 61.878(1)(a) to deny the requesting parties access to the records requested was not justified under the facts presented. The privacy interest of the disciplined public employees is outweighed by the public's right to be informed about the job related conduct of the employees. Therefore, the release of the records sought would not constitute a clearly unwarranted invasion of the personal privacy of the university's food service employees. You should promptly advise Mr. Vincent and Mr. Kendall that they may inspect the records requested, or in the alternative you may forward copies of these records to them.
As required by statute, a copy of this opinion is being mailed to Mr. Vincent and Mr. Kendall, who requested it. If you disagree with this opinion, you have the right to initiate further proceedings in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.