Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Department of Fish and Wildlife Resources violated the Open Records Act in denying Robert Marango's request, dated January 25, 2002, for "copies of the completed 2001 annual employee evaluations for Captain Dennis Watson and Lt. Charles Bolton." We conclude the denial did not violate the Act.
In its initial denial, dated February 4, 2002, the Department advised Mr. Marango that "Employee Performance Evaluations are exempted from the open records statute in accordance with KRS 61.878(1)(a)(i)(j)."
In his letter of appeal, Mr. Marango argues that the Department's response was untimely, failed to explain how the cited exemption applied to the records withheld, and the completed employee evaluations are official public records and should be open to inspection.
After receipt of Notification of Mr. Marango's appeal and a copy of his letter of appeal, Scott Porter, Assistant Attorney General, General Counsel, Department of Fish and Wildlife Resources, provided this office with a response to the issues raised in the appeal. In his response, Mr. Porter advised, in part:
There are classifications of employees whose position is so integral with the overall management of a city or school that the public's interest in disclosure far outweighs a privacy interest. See 92-ORD-1145 and 00-ORD-177. However, that is not the case here. The requested evaluations are of Sgt. Marango's two immediate supervisors whose ranks are Captain and Lieutenant. Both men are outranked by numerous officers in the DFWR [Department of Fish and Wildlife Resources] and are not singularly or ultimately responsible for the overall management of the agency or Division of Law Enforcement. Both Capt. Watson and Lt. Bolton are ordinary merit employees in the Division. They have limited supervisory authority of officers within their district and are outranked by other officers within the Division's chain of command. They have no command authority outside of the Division of Law Enforcement. In this regard, both Capt. Watson and Lt. Bolton's evaluations are analogous to the evaluations of a branch manager. That specific request was denied in OAG 91-62. Their job duties bring them within the purview of the limited exemptions mentioned above.
In a reply to Mr. Porter's response, Mr. Marango argues, in part, that the evaluations should be made open in order that the state's new evaluation system can be open to public scrutiny so that the public or legislature can determine that the law is being properly implemented.
We are asked to determine if the Department's denial of Mr. Marango's request violated the Open Records Act. For the reasons that follow, we conclude that, with the exception of procedural deficiencies, the denial was proper and consistent with the Act and prior decisions of this office.
KRS 61.878(1)(a) authorizes the nondisclosure of:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In construing the application of KRS 61.878(1)(a) to public employee evaluations, this office stated, in 99-ORD-137:
In a line of decisions dating back to 1977, the Attorney General has held that the privacy rights of public employees in information of a personal nature that appears in a performance evaluation generally outweighs the public's interest in disclosure of the evaluation. OAG 77-394; OAG 79-348; OAG 80-58; OAG 82-204; OAG 86-15; OAG 89-90; 92-ORD-1375; 94-ORD-54; 94-ORD-132; 96-ORD-51; 96-ORD-275; 99-ORD-14; 99-ORD-42.
In addition, in 99-ORD-128, we stated:
Moreover, we have recognized that both the evaluator and the person being evaluated have a substantial privacy interest in the evaluation that generally outweighs the public interest in inspecting the record. This privacy interest is premised on the recognition that "disclosure of . . . evaluations may spur unhealthy comparisons, breeding discord in the work place, and result in injury and embarrassment to the employee." 92-ORD-1145, p. 4. The public's interest in inspecting evaluations of rank and file employees is correspondingly reduced since these employees do not directly control the management and operation of a public agency.
Compare, 92-ORD-1145 (performance evaluation of school system superintendent is subject to disclosure because his performance has a direct bearing on the management of the school system and he has decreased expectation of privacy in the document) and 00-ORD-177 (evaluation of City Manager subject to disclosure as he is ultimately responsible for the management of city government and, thus, "the public's interest in his evaluation is heightened, and his expectation of privacy is correspondingly reduced.")
Thus, with rare exception, the Attorney General has affirmed public agency denials of open records requests for rank and file public employee evaluations. The Department's supplemental response clearly established that the public employees at issue fall within the class of rank and file employees. We find no error in the Department's denial of Mr. Marango's request for the employee evaluations at issue, under authority of KRS 61.878(1)(a).
In earlier opinions, this office has held that performance evaluations, not adopted as the basis of final agency action could be held from disclosure as preliminary records under KRS 61.878(1)(i) and (j). However, since the performance evaluations in question now serve as the basis of awarding extra days off work for state employees, they would not be exempt from disclosure under KRS 61.878(1)(i) and (j). However, as noted above, the evaluations may be withheld from disclosure under authority of KRS 61.878(1)(a).
We do conclude the Department violated the procedural requirements of the Open Records Act set forth at KRS 61.880(1) in its initial response by failing to briefly explain how the cited exceptions applied to the records withheld. KRS 61.880(1) 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 record 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 construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Although these deficiencies were subsequently remedied by the Department's supplemental response to this office, we remind the Cabinet that "the procedural requirements of the Open Records Law are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
Finally, Mr. Marango argues that the Department did not respond to his request within the prescribed three business days. The Department, in its supplemental response, posits that if Mr. Marango's letter dated, January 25, 2002, was mailed on that day, the earliest it could have been received would have been the afternoon of January 28, 2002. It further indicated no one could recall whether the envelope contained a notation on it that indicated that it was an open records request. The Department stated that the letter was received and opened by the official custodian of the agency's personnel records on Wednesday, January 30, 2002 and the response to Mr. Marango's request was placed in the mail within three business days of his review.
To the extent the Department failed to provide Mr. Marango with a written response within three business days of its receipt, its initial response was untimely and a procedural violation of the Open Records Act. In its supplemental response, the Department stated that any delay would have been due to the open records request not being segregated from ordinary correspondence and routed immediately to the records custodian. The Department indicated that it had reviewed how correspondence is opened, sorted, and delivered so that open records requests can be delivered to the appropriate custodian of records for a timely response. We conclude that this subsequent corrective action and the fact that the official custodian timely responded to the request once received would serve to mitigate the procedural violation.
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.
Robert MarangoP.O. Box 1008Brandenburg, KY 40108
Robert M. BatesDirectorDivision of Administrative ServicesDepartment of Fish and Wildlife Resources# 1 Game Farm RoadFrankfort, KY 40601
Scott PorterGeneral CounselDepartment of Fish and Wildlife Resources# 1 Game Farm RoadFrankfort, KY 40601