Request By:
Mr. H. Randall Redding, City Attorney
City of Henderson
Henderson Municipal Center
Henderson, Kentucky 42420
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mrs. Brenda Freeman has appealed to the Attorney General, pursuant to KRS 61.880, your response to her request to inspect a number of documents relating to the City of Henderson's proposed demolition of a garden shed located on her property in Henderson. Based on the correspondence with which we have been provided, it appears that Mrs. Freeman's shed is the subject of an ongoing dispute which has culminated in her decision to initiate a civil action in circuit court.
From May 1991 through February 1992, Mrs. Freeman submitted several requests to Mr. Marvin Dill, the Henderson Code Administrator, Mr. Russell Sights, the Henderson City Manager, and you. In those letters, she requested access to all reports, minutes, letters, telephone transcripts, inspection reports, initiating complaints, and documents reflecting actions taken. Additionally, she requested the transcript of a December 19, 1991, hearing at which her shed was discussed, the city ordinance adopting the "BOCA National Property Maintenance Code," and the names of the three board members who participated in the December 19 hearing.
Finally, on February 10, 1992, Mrs. Freeman submitted a request for a "list of information" which she needs to prepare her case in circuit court, and which consists of: (1) the transcript of an April 18, 1991, hearing; (2) documents reflecting the job specifications, description, and qualifications for the position of Code Administrator; (3) the date and place of Marvin Dill's high school and college graduation, and the type of baccalaureate degree he earned; (4) the "legal guidelines and/or instructions" used by Mr. Dill in discharging his duties as Code Administrator; (5) documents reflecting the job specifications, description, and qualifications for the position of secretary to the Code Administrator; (6) the date and place of Edna Stallins' high school graduation and any subsequent degrees earned; (7) documents reflecting the job specifications, description, and qualifications for the position of fire chief; and (8) the date and place of Charles Trodglen's high school graduation and any subsequent degrees earned.
You responded to Mrs. Freeman's request in letters dated June 17, 1992, and June 26, 1992, providing her with numerous copies from your file, including the transcript of evidence, legal research on the issues raised, the BOCA Codes, all correspondence, all newspaper clippings,and all advertising. In sum, you released virtually every document in your agency's custody which relates to the dispute. You did, however, deny that portion of Mrs. Freeman's request pertaining to Mr. Dill, Ms. Stallins, and Mr. Trodglen's academic credentials.
Mrs. Freeman asks that we review your handling of her request to determine if your actions were consistent with the Open Records Law. For the reasons set forth below, we conclude that your response was procedurally deficient, as well as substantively deficient in part.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. The statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Your response to Mrs. Freeman's request was procedurally deficient insofar as it was not issued within three working days. Well over a year has elapsed since her initial request to Mr. Dill, and some four months has elapsed since her latest request. "Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at p. 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request. " See also, OAG 91-200; OAG 92-35. A delay of in excess of one year is clearly unreasonable under the Open Records Act.
Moreover, although your response contained a partial denial of Mrs. Freeman's request, you failed to cite the specific exception authorizing nondisclosure or to include a brief explanation of how the exception applies. Nor did you send a copy of the written denial to the Attorney General. We strongly urge you to review the cited provisions to insure that future responses conform to the Open Records Act.
Turning to the substantive issues raised in this appeal, we find that although you released virtually the entire file compiled by the City in this matter, you improperly withheld documents containing information which relates to the educational qualifications of Mr. Dill, Ms. Stallins, and Mr. Trodglen. This Office has recently rejected the argument that this information is exempted from disclosure by operation of KRS 61.878(1)(a), the privacy exception. In OAG 89-90, at p. 7, we observed:
[W]e see no unwarranted invasion of personal privacy in examining relevant prior work experience and educational qualifications of employees or former employees. One does not typically work in secret, such that one's prior work experience would be reasonably termed information of a personal nature, release of which would constitute a clearly unwarranted invasion of personal privacy. We believe the same view applies to educational qualifications or levels obtained by public employees.
We therefore concluded that "[e]ducation qualifications, meaning educational levels obtained . . ., reported upon . . . [applications for employment and resumes submitted by those who are hired] are also subject to inspection. " OAG 89-90, at p. 8. See also, OAG 92-59.
We are not persuaded by your argument that the requested documents are exempt from disclosure because they are "absolutely irrelevant to this case." Simply stated, these are not legally sufficient grounds for exclusion. As noted, KRS 61.880(1) requires an agency which elects to withhold documents to cite a specific exception authorizing nondisclosure and provide a brief explanation of how that exception applies. Your failure to cite an exception while withholding records was improper under the Open Records Law, and your denial of that portion of Mrs. Freeman's request was inconsistent with the law, as well as prior opinions of this Office.
If the City of Henderson is in possession of the requested information, whether it is contained in a resume or on a job application, it must release those documents forthwith. The City may, of course, separate or otherwise mask any information of a personal nature which appears on those documents, including, but not limited to, the employee's home address, social security number, and medical information, pursuant to KRS 61.878(4).
Mrs. Freeman is reminded that requests for information, as distinguished from records, are outside the scope of the Open Records Law. OAG 89-77; OAG 90-19. She should bear this in mind in drafting future requests.
As required by statute, a copy of this opinion will be sent to the requesting party, Mrs. Brenda Freeman. Mrs. Freeman and the City of Henderson may challenge it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5).