Request By:
IN RE: Edward J. Allison/Department for Social Services
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Department for Social Services' partial denial of a series of open records requests submitted by Mr. Edward J. Allison to the Department in the period from October, 1991, to August, 1992. The disputed records are identified as:
1) Findings of fact, also referred to as the preliminary administrative review report, prepared by Regina McElroy, Family Services Program Specialist, Quality Assurance Branch, after her interview with Janet Bewley, Family Services Worker Principal, and Richard Murphy, Family Services Office Supervisor, including any "subsequent comments" submitted by Ms. Bewley and Mr. Murphy after reviewing the findings of fact for accuracy.
2) "Recommendations for future reference" forwarded to the staff by Mr. Jim McClure, Manager, Quality Assurance Branch, and referenced in Mr. McClure's April 29, 1992, letter;
3) Documents reflecting quality assurance studies or recommendations from the Quality Assurance Branch to Janet Bewley, or to the Owensboro Office of the Department of Social Services since 1985;
4) Janet Bewley's performance evaluation since she became an employee of the Department;
5) Janet Bewley's payroll records for the past five years;
6) Records reflecting sick days or vacation days taken by Janet Bewley in 1991 and 1992.
Based on the correspondence with which we have been provided, it appears that Ms. Bewley, a family services worker for the Department, investigated allegations of child abuse involving Mr. Allison's child, and found that although there was "some indication" of abuse, the allegations were "inconclusive." In the wake of this investigation, Mr. Allison apparently requested an administrative review of the case, and of Ms. Bewley's performance, by the Department's Quality Assurance Branch. Mr. Allison received written notification of the Quality Assurance Branch's decision in a letter from Mr. Jim McClure, Branch Manager, dated April 29, 1992. The documents which are the subject of this appeal were generated in the course of, or are indirectly related to, that administrative review and Ms. Bewley.
On behalf of the Department, Commissioner Peggy Wallace denied Mr. Allison's request for the documents identified above. She maintained that the preliminary administrative report was exempt pursuant to KRS 61.878(1)(h) and (i). Relying on KRS 61.878(1)(a), she also denied Mr. Allison's request for all documents submitted by Ms. Bewley for employment with the Department, all performance evaluations, and all documents relating to probationary periods, warnings, reprimands, or recommendations. It was her position that the records contained "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." In addition, Commissioner Wallace denied Mr. Allison's request for evaluations of the Owensboro Department for Social Services and Ms. Bewley from the Quality Assurance Branch for the past five years, Ms. Bewley's payroll records, and her timesheets. She stated that because the records are not compiled "in such a manner," compliance with his request would place an unreasonable burden on the Department pursuant to KRS 61.872(6).
In a followup letter dated August 20, 1992, Commissioner Wallace agreed to release documents submitted by Ms. Bewley for employment, as well as documents relating to disciplinary action taken against her. She reiterated her belief that performance evaluations are not subject to inspection and may properly be withheld pursuant to KRS 61.878(1)(a) and OAG 86-15. She again denied his request for payroll records and documents reflecting sick leave, relying on KRS 61.872(6). It is these records, along with the preliminary administrative review report prepared by Regina McElroy, and the "recommendations for future reference" forwarded to the staff by Mr. Jim McClure, which are the subject of this appeal.
We are asked to determine if the Department for Social Services properly relied on KRS 61.878(1)(h) and (i) in denying Mr. Allison's request for access to the preliminary administrative review report and recommendations for future reference, on KRS 61.878(1)(a) in denying his request for Ms. Bewley's performance evaluations, and on KRS 61.872(6) in denying his request for Ms. Bewley's payroll records and time sheets, as well as quality assurance studies or recommendations of the Owensboro Department for Social Services and Ms. Bewley from the Quality Assurance Branch since 1985. For the reasons set forth below, we conclude that the Department properly relied on KRS 61.878(1)(a) in denying Mr. Allison access to Ms. Bewley's performance evaluations, but failed to sustain its burden of proof relative to its invocation of KRS 61.878(1)(h) and (i) and KRS 61.872(6).
With respect to Mr. Allison's request to inspect Ms. Bewley's performance evaluations, we find that the Department's actions were consistent with the Open Records Act. This Office has consistently recognized that an employee's right of privacy in his evaluation is superior to the public's interest in inspecting that evaluation. OAG 77-394 (university professor) ; OAG 78-730 (university professor) ; OAG 79-348 (teacher) ; OAG 82-211 (university professor) ; OAG 86-15 (teacher) ; OAG 89-90 (teacher) ; OAG 91-62 (branch manager) ; 92-ORD-1375 (university professor) . These opinions were premised on the notion that an evaluation is a matter of opinion and does not represent any action on the part of the agency. KRS 61.878(1)(g) and (h), now codified as KRS 61.878(1)(h) and (i). Accordingly, the only information to which the public is entitled is information relating to the action which the agency takes in light of the evaluation. Moreover, we have recognized that the privacy interests protected by KRS 61.878(1)(a) are as much those of the evaluator as those of persons being evaluated, since the evaluator generally makes his evaluation with the understanding that it will be kept confidential. OAG 79-348; OAG 86-15. The Department therefore properly relied on KRS 61.878(1)(a) in denying that portion of Mr. Allison's request.
The Department did not, however, meet its burden of proof under KRS 61.880(2) and KRS 61.882(3) relative to its invocation of KRS 61.878(1)(h) and (i). Those provisions authorize the nondisclosure of:
(h) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(i) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
This Office and Kentucky courts have recognized that the internal investigative files of a public agency are exempt from public inspection under these provisions unless they are adopted by the agency as part of its final action. For example, in City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1982), the Kentucky Court of Appeals was asked to determine whether the investigative files of the Louisville Police Department were exempt from public inspection under the exceptions for preliminary documents. The court answered in the affirmative, noting:
Internal affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.
(Emphasis added.) City of Louisville, supra at 659. See also Kentucky State Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953 (1983);Courier-Journal & Louisville Times Co. v. The University of Kentucky, Ky., 830 S.W.2d 373 (1992); OAG 80-43; OAG 83-41; OAG 87-10; OAG 87-32; OAG 87-64; OAG 88-25; OAG 89-69; OAG 91-23.
When a complaint is filed with the Quality Assurance Branch, it is assigned to a quality assurance specialist, who is responsible for investigating the handling of the case "utilizing established policies and procedures and where appropriate recommend[ing] changes." The specialist conducts interviews, reviews records, and issues a preliminary report in which he or she determines whether policies and procedures were followed and the quality of services provided to the client or complainant. The Quality Assurance Branch Manager, in turn, reviews the preliminary report and prepares a final report containing a written summary of Findings and Recommendations for submission to the Commission. Presumably, the branch manager may or may not adopt the preliminary report. In the present action, Mr. McClure acknowledges in his final report that that report is based on a "careful review of the Findings of Fact presented to [him] by Regina McElroy." As noted, the report recites, almost to the letter, Ms. McElroy's report. 1 Moreover, the Department has failed to advance any arguments in support of its position that the preliminary report falls within the parameters of KRS 61.878(1)(h) and (i). It has long been the position of this Office that the mere invocation of the exception, without an adequate explanation of how the exception applies, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882(3).
Based on our review of the preliminary administrative review report prepared by Ms. McElroy and the final report issued by Jim McClure, it appears that Mr. McClure adopted the findings of fact and recommendations in their entirety. Although the narrative portions of Ms. McElroy's report, containing "documentation of interviews" and "reviews of documentation," are omitted, the balance of the preliminary report is incorporated, virtually verbatim, into Mr. McClure's report.
Turning to the final issue raised in this open records appeal, we find that the Department also failed to sustain its burden of proving, by clear and convincing evidence, that Mr. Allison's request for recommendations from the Quality Assurance Branch to Janet Bewley or the Owensboro Office of the Department of Social Services since 1985, Janet Bewley's payroll records, and her time sheets, places an unreasonable burden on the Department pursuant to KRS 61.872(6). Commissioner Wallace states, in her letters of denial, that the requested records are not compiled "in such a manner," and that compliance with Mr. Allison's request would place an unreasonable burden on the Department.
KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.882(4). However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the requester satisfies this condition. If an agency then invokes KRS 61.872(6) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden on it.
This burden is not sustained by the bare allegation that the request is unreasonably burdensome. As we noted in OAG 77-151, at p. 3:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection. . . .
Thus, in OAG 89-79, we held that the Department of Transportation violated the Open Records Act by failing to document, by clear and convincing evidence, how the subject request placed an unreasonable burden on it. Mere invocation of the cited exception does not sustain the agency's burden.
Only if the agency has adduced evidence which would warrant this Office in finding that the burden is indeed an unreasonable one, will the Attorney General uphold its action. In OAG 89-88, we ruled that the Department of Insurance had sustained this burden. The Department indicated that the requested records consisted of some 800 documents, and explained the difficulty of separating confidential from nonconfidential material. Similarly, in OAG 91-58 we held that the Louisville/Jefferson County Office of Economic Development properly denied a request for "all notes, letters, memos, and studies which might contain information about the exchange of information between the OED" and various offices and agencies, and that it sustained its burden of proof under KRS 61.872(6). The agency explained that the requested documents might be located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt materials.
Commissioner Wallace does not describe with any degree of specificity the volume of records implicated by Mr. Allison's request, the difficulty in accessing the records, or the problems associated with redacting exempt materials from those records. Her denial consists of little more than an invocation of the statute. We therefore conclude that the Department failed to sustain its burden of proving, by clear and convicting evidence, that the application places an unreasonable burden on it.
The Department of Social Services is directed to release the preliminary administrative review report, including recommendations for future reference, quality assurance studies or recommendations from the Quality Assurance Branch to Janet Bewley and the Owensboro Office of the Department, Janet Bewley's payroll records, and her time sheets forthwith. It may continue to withhold Ms. Bewley's performance evaluations pursuant to KRS 61.878(1)(a).
Mr. Allison and the Department for Social Service may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Footnotes
Footnotes