Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Luther Luckett Correction Complex's (LLCC) partial denial of Brenda Howard's open records requests.
On December 31, 1997, Ms. Howard requested to inspect the following records:
Interview Board scores, Recommendations and Interview schedule for Lieutenant position in October, August, and May 1997; Warden Berry scores and recommendation for second interview Lieutenant date October 28, 1997; ACA Findings and Exit Interview Oct. 1997; Copy of tape recording on December 17, 1997 by Warden Berry with Sgt. Brenda Howard, unabridged in its entirety.
Cynthia Hall, Open Records Coordinator, LLCC, responded to Ms. Howard's request, stating:
In response to the above - # 1 - Interview Board Scores, Recommendations, and Interview Schedules. Request is denied in accordance with KRS 61.878(1)(a) disclosure would constitute unwarranted invasion of personal privacy and KRS 61.878(1)(j) they are preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. # 2 - Warden Berry scores and recommendations - personal interviews were given, there are no documents with scores or recommendations. # 3 - ACA Findings - please find attached. # 4 - Tape Recording - there is no such tape as requested.
On January 8, 1998, Ms. Howard submitted another open records request, asking to inspect:
Authorization approving Rudy Prell as Lieutenant, approved and signed by Commissioner/Deputy Commissioner of Adult Institutions; Authorization approving Rudy Prell as Lieutenant signed by Warden Berry; All Documentation of Complaint Investigation April 23, 1996 - May 31, 1996 concerning Sgt. Brenda Howard, Lt. Mike Fryberger; Letters of Nomination form submitting Sgt. Brenda Howard for supervisor of the quarter May 1994 to current date.
Again responding on behalf of LLCC, Ms. Hall informed Ms. Howard that the official custodian of DOC [Department of Corrections] Personnel files was the State Personnel Department in Frankfort and any request for personnel information should be forwarded directly to that department. Ms Hall provided her with the address of the State Personnel Department. She also provided Ms. Howard with copies of the requested records concerning the complaint and investigation and the supervisor of the quarter.
After receipt of the letter of appeal, we sent "Notification of Receipt of Open Records Appeal" to the Department of Corrections and enclosed a copy of the Ms. Howard's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Tamela Biggs, Office of General Counsel, provided this office with a response to the issues raised in the appeal.
Addressing first the requested "interview board scores, recommendations and interview schedule," Ms. Biggs explained that the "interviews schedule" was interpreted to mean "the list of individuals who are eligible, on the register and requested an interview. " The Department argued that the interview schedule was akin to the register of applicants for public employment, which this office, in 96-ORD-1, held that the privacy interest of individuals whose name appear on the register substantially outweighs the negligible Open Records Act related public interest in disclosure and that disclosure would constitute a clearly unwarranted invasion of privacy under KRS 61.878(1)(a).
As to the request for the "board scores and recommendations, " Ms. Biggs explained that each interview was conducted by a three member panel. The panel questions each applicant and discusses the interview. Each panel member then assigns the applicant a score based upon his subjective perceptions of the applicant's performance at the interview and other relevant factors. The three scores are then averaged together for submission to the Warden for his review. Ms. Biggs stated that the interview body was simply a recommending body and does not have the authority to hire or promote based upon the scores they assign, thus these scores and recommendations were preliminary recommendations in which opinions are expressed exempt under KRS 61.878(1)(j).
Responding to the request for "Warden Berry scores and interview, " Ms. Biggs explained that, depending upon the number of open positions, the Warden may request the top three, five or varying number of candidates be provided for his interview. He may then conduct his own interview of the candidates whose names were submitted by the panel. Ms. Biggs stated she had been informed that while Warden Berry did meet some applicants, no written scores were given and thus the institution could not provide a record which did not exist.
Ms. Biggs reiterated the Department's original response that a "tape recording on December 17, 1997 by Warden Berry with Sgt. Brenda Howard" did not exist.
In response to Ms. Howard's second open records request in which she asked to inspect the "authorization approving Rudy Prell as Lieutenant," Ms. Biggs explained that LLCC properly referred Ms. Howard to the Department's Central Office Personnel Department in Frankfort, which is considered the "official custodian" for all Personnel records of Departmental employees. In addition, Ms. Biggs amplified the Department's original response by indicating that the requested records were "unavailable" at LLCC.
In regards to the requested records relative to the "Complaint Investigation April 23, 1996 - May 31, 1996 concerning Sgt. Brenda Howard, Lt. Mike Fryberger," Ms. Biggs attached copies of documents from the investigative file which had been previously been released to Ms. Howard and confirmed that the remainder of the file had been withheld as preliminary documents under KRS 61.878(1)(i) as those portions were not incorporated into the "final" report. However, Ms. Biggs indicated that, pursuant to KRS 18A.020(4), these other documents contained in the investigative file were released to Ms. Howard. One document released from the file to Ms. Howard had certain information redacted pursuant to KRS 61.878(1)(i) and (j). Ms. Biggs explained that the redacted information did not refer to final action by the Department and pertained to a separate pending, unrelated matter and included the opinion or recommendation of the Warden.
We are asked to determine whether the partial denial of Ms. Howard's open records requests were proper. For the reasons which follow, we conclude that the agency's responses were proper and consistent with provisions of the Open Records Act.
We conclude the Department properly denied the request for the interviews schedule under authority of KRS 61.878(1)(a) and 96-ORD-1. In its response, the Department explained that the interviews schedule was a list of individuals eligible for and on the register for a position and who had requested for an interview. The interviews schedule was considered the equivalent of the register of applicants for public employment. In OAG 90-113, this office held that applications and resumes submitted by unsuccessful applicants for public employment are exempt from inspection under KRS 61.878(1)(a).
In 96-ORD-1, we held that the privacy interest of individuals whose names appear on the register (the eligible list for appointment to the classified service maintained by the commissioner of personnel) outweighed the negligible Open Records Act related public interest in disclosure and that disclosure would constitute a clearly unwarranted invasion of personal privacy under KRS 61.878(1)(a). In discussing the privacy interests associated with the register, this office explained:
Simply stated, an individual whose name appears on the register is, or has, expressed an active interest in seeking employment in the classified service. To the extent that release of the register will disclose the fact that those individuals wish to leave their current positions, and may be harmful to their careers if they are not selected for employment from the register, it implicates the same privacy interests as release of the applications of unsuccessful applicants. These privacy interests are weighty indeed.
Weighing the public interests to be served by the disclosure of the names on the register, we stated:
Although inspection of the register may, in some remote fashion, facilitate public oversight of state hiring practices, and in particular, the statutory function performed by the commissioner of personnel relative to proper maintenance of the registers, it would not further the citizens' right to know what their government is doing in any meaningful way. Since, as the court noted in Core , appointments are made on the basis of applications, interviews, and other factors, disclosure of the register "would not in any real way subject agency action to public scrutiny. " Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 829 (1994). It is, instead, the public's interest in the competence of the individuals appointed, and the appointing agency's adherence to regulations governing hiring, that must be protected by inspection of public records.
In the instant case, unless disclosure of the interviews schedule sheds light on the agency's hiring decision, such records are of no legitimate interest to the public. Accordingly, we conclude the Department properly withheld the request for the interviews schedule under authority of KRS 61.878 (1)(a); 96-ORD-1; and OAG 90-113.
We next address the request for the "interview board scores and recommendations. " KRS 61.878(1)(j) excludes from the mandatory disclosure provisions of the Open Records Act, "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." This exception is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations. It has thus been interpreted to authorize the nondisclosure of preliminary recommendations of personnel within the agency. 94-ORD-132. In discussing the purpose underlying this exemption, this office, in OAG 88-85, observed:
Recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be as open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
If, however, predecisional documents are incorporated into final agency action, they are not exempt.
The Department explained that each member of the three member interview panel assigned the applicant a score based upon subjective perceptions of the applicant's performance at the interview. The three scores are then averaged and submitted to the Warden for his consideration. The interview panel is a recommending body and does not have the authority to hire or promote based upon the interview or the scores assigned. The ultimate decision-maker is the Warden. Although the interview panel's work at this point is final, it remains preliminary to the Warden's final decision. Unless the Warden adopts the panel's recommendations as part of his action or incorporates it into his final decision, the recommendations retain their preliminary character. The Department's response to Ms. Howard's request indicated personal interviews were given by the Warden, but there were no documents with scores or recommendations.
We, thus, conclude that Department properly withheld interview board scores and recommendations records as preliminary recommendations in which opinions were expressed under authority of KRS 61.878(1)(j).
Addressing next the requested personnel records relative to the "authorization approving Rudy Prell as Lieutenant," the Department informed Ms. Howard that those records were located in the Department's Central Office in Frankfort and advised her that any request for personnel information should be forwarded directly to the official custodian at State Personnel, State Office Building, 5<th> Floor, Frankfort, KY 40601. In its response to the letter of appeal, the Department indicated that it did not have copies of the requested personnel records at LLCC and, accordingly, notified Ms. Howard that her request for those records should be made to Department's Central Office in Frankfort.
KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Although the Department, in its initial response, did not inform Ms. Howard that the record was unavailable at LLCC, we conclude the Department, substantially complied with the requirements of KRS 61.872(4), by promptly notifying Ms. Howard as to the name and location of the official custodian of the requested records.
Regarding the request for all documents relating to the "Complaint Investigation April 23, 1996 - May 31, 1996 concerning Sgt. Brenda Howard, Lt. Mike Fryberger," the Department, in its response to the letter of appeal, indicated that all documents in the investigative file had been released to Ms. Howard. The only exception to full disclosure was one document released from the file which had certain information redacted pursuant to KRS 61.878(1)(i) and (j). The Department explained that the redacted information did not refer to final action by the Department and pertained to a separate pending, unrelated matter and included the opinion or recommendation of the Warden.
Pursuant to KRS 61.880(2), we requested an unredacted copy of the document in question, and conclude that the redacted portion of the record was accurately characterized by the Department and properly masked under authority of KRS 61.878(1)(i) and (j).
Finally, the Department denied Ms. Howard's requests for a copy of Warden Berry's scores and recommendations and a copy of the tape recording of a meeting on December 17, 1997 by Warden Berry with Sgt. Brenda Howard, unabridged in its entirety, on the basis that no such records exist. The Attorney General has long recognized that a public agency cannot afford a requester access to records which do not exist or cannot be located. 97-ORD-82.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.