Opinion
Opinion By: Albert B. Chandler III,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in these consolidated open records appeals is whether the Berea Independent School District properly denied Sherry R. Deatrick's October 19 and October 24, 2002, requests for the complete personnel records of District employees Billie Buell and Vincent Savatgy based on prior decisions of this office affirming public agency denial of nonspecific requests for personnel records. Although it is clear that the District argued in good faith that it is not obligated to honor a nonspecific request for a personnel record, or to determine which documents within the record are exempt and which are nonexempt, we find that the reasoning of the decisions relied upon is not supported by the express language of the Open Records Act or its underlying intent. Accordingly, we reverse that line of decision and find that Ms. Deatrick's requests for the complete personnel records of Ms. Buell and Mr. Savatgy were sufficiently specific and that the District was obligated to locate their records, review their records, and disclose all nonexempt documents in their records to Ms. Deatrick. Further, we find that the District was obligated to identify and withhold those exempt documents for which statutory protection exists from the requested personnel records and provide Ms. Deatrick with a written explanation including citation to the statute authorizing nondisclosure. KRS 61.880(1).
In responses dated October 24 and October 30, 2002, Superintendent Gary Conkin notified Ms. Deatrick that she must describe the documents in the personnel records to which she desired access with greater particularity. He explained:
KRS 61.878(1)(a) exempts certain portions of [employees'] personnel file [s] and, therefore, does not allow the complete personnel record [s] to be divulged under the Open Records Act. The opinion of the Attorney General 88-53 specifies "A request to inspect personnel documents should be specific as to the kind of records and documents which were the subject of the request to inspect. "
Ms. Deatrick subsequently initiated two open records appeals in which she acknowledged the District's right to withhold confidential records from the personnel files she requested, but challenged the District's characterization of her requests as nonspecific. Because the appeals raise identical issues, they are hereby consolidated.
In supplemental correspondence directed to this office following commencement of Ms. Deatrick's appeal, Berea Independent School District Corporate Counsel Guy R. Colson elaborated on his client's position. He advised:
Previous OAG opinions (one specifically), OAG 88-53, answers the issue before us that a shotgun approach for asking for the entire file is not acceptable and that a request to inspect personnel documents should be specific as to the kinds of records and documents which are the subject of the request.
Continuing, Mr. Colson observed:
To leave the burden upon a public agency to determine what is and is not subject to Open Records is not appropriate. I will tell you that from my understanding, the only information I would furnish from the personnel records would be any certificates which had been acquired by both Mr. Savatgy and Ms. Buell (that is, teaching certificates or certifications) and their name, position, and such things as training that they have had while at Berea or elsewhere which helped them gain their certificate which would have no personal data on it whatsoever. What I would not furnish is anything else in the file, including any evaluations. It must be remembered in each of these person's cases, there are no disciplinary proceedings, complaint or actions taken against either of these persons, and so that will not be found in any personnel file. Nor would I have any health information (which is kept in a separate file in our system).
He concluded that "the public agency while the gatekeeper cannot be asked to determine which documents out of the personnel file are subject to Open Records [and thus] the requests should specify in detail what is desired out of a personnel file so that the gatekeeper can adequately accept or deny the request." Respectfully, we disagree. In so doing, we depart from the line of decisions upon which the District relies.
In this evolving area of the Open Records Act, the Attorney General has recognized:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity . . . of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government." 95-ORD-49, p. 5, citing Providence Journal Company v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.C.D. Rhode Island, 1978). Instead, the requester should submit "a brief and simple request for the [government] to make full disclosure or openly assert its reason for nondisclosure." Id. Requests must be framed with sufficient clarity and directness to enable the custodian of records to identify and retrieve the records [the requester] wishes to access. This, as we have so often noted, is a precondition to inspection of public records. See e.g., 92-ORD-1261, and authorities cited therein.
99-ORD-140, p. 6, cited in 00-ORD-235. The cited decisions are premised on the notion that if a requester identifies the records which he wishes to access with sufficient specificity, the burden shifts to the public agency to "determine within three (3) days, excepting Saturdays, Sunday, and legal holidays . . . whether to comply with the request and . . . notify in writing the person making the request, within the three (3) day period, of its decision." KRS 61.880(1). Since its enactment in 1976, the Open Records Act has required the agency, in issuing a "response denying, in whole or in part, inspection of any record" to include a statement of the specific exception authorizing the withholding of the records and a brief explanation of how the exception applies to the record withheld. " Id. Thus, if the Berea Independent School District were asked to provide, for example, the complete record maintained by the District on a specific topic of public interest, it would be obligated to retrieve documents responsive to that request, review the documents, and determine which are excepted and which are nonexcepted "and make the nonexcepted materials available for examination." KRS 61.878(4). We see no reason why a request for a complete personnel record of a named individual, arguably a more manageable records request, should be treated differently.
The opinion upon which the District chiefly relies, and from which the problem we resolve today arose, OAG 88-53, involved a request to the Natural Resources and Environmental Protection Cabinet for the complete personnel files of four Cabinet employees. The Cabinet responded that the requester could inspect all records in the files "which are not exempt from public disclosure under KRS 61.878(1)(a) as 'public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy' and which are not excluded by KRS 61.878(1)[(i)] and [(j)] as preliminary information." The requester appealed challenging the Cabinet's failure to identify the specific records withheld and why.
The Attorney General criticized the requester for deficiencies in his request and the agency for deficiencies in its response. At pages 1 and 2 of that opinion, we observed:
In regard to a public agency's obligation relative to a request to inspect and copy public documents, KRS 61.880(1) states in part as follows: ". . . 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 . . . .
While [the Cabinet] stated that the requesting party could examine all portions of the personnel files which are not exempt from public disclosure under KRS 61.878(1)(a), [(i) and (j)], [the Cabinet] never identified what specific documents were withheld from inspection. There was no explanation as to how the exceptions relied upon applied to the specific documents withheld. There was merely a statement that some unidentified documents were being withheld from inspection pursuant to some of the statutorily recognized exceptions to public inspection.
In order for this office to determine whether [the Cabinet] acted properly and within the terms and provisions of the Open Records Act, we need to know what kinds of documents were withheld. The requesting party maintains that [the Cabinet] told him that evaluations and applications of the persons involved were withheld. This office needs to know what kinds of applications and evaluations were withheld and whether those documents constitute all of the documents and records withheld. Our concern is not with what [the Cabinet] released or made available but that which [the Cabinet] withheld from inspection.
Turning to the deficiencies in the request, we expressed the view that:
As far as the request to inspect documents is concerned, we think it could have been more specific which, of course, would have facilitated [the Cabinet's] response. A personnel folder of a public employee, by its very nature, contains a mixture of documents which are subject to inspection and which may be excluded from public inspection. Rather than a "shotgun" approach or engaging in a sort of fishing expedition, the request should have been more specific as to the kinds of records and documents which were the subject of the request to inspect. See, for example, OAG 85-88, . . . and the case of Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981).
In the above mentioned case the court said in part that much of the information found in the personnel folders deals with the items and facts of a personal nature and no public interest would be served by a complete disclosure. At page 111 of its opinion the court said in part as follows:
Id. at 4, 5. In sum, the Attorney General held that the response was insufficient "as it did not conform to the requirements of KRS 61.880(2)," and that the request was insufficient "as it was overly broad and made no attempt to identify what particular documents the requesting party sought to inspect. " Id. at 2. It was from the holding in OAG 88-53 that the line of decisions arose requiring a degree of specificity with regard to requests for personnel files, and by extension inmate folders, that was not required in other open records contexts. See e.g., OAG 91-58; 93-ORD-116; 97-ORD-66; 00-ORD-137; 01-ORD-106. 1 It is from OAG 88-53 and its progeny that we depart today. We hold that neither the language of the Act, which merely requires that the requester "describe" the record or records to be inspected, nor the case relied upon, which merely recognizes that a personnel file contains both excepted and nonexcepted material, support the holding in this line of decisions.
As noted above, the Attorney General has consistently held that as a precondition to inspection, a requesting party must identify the records to be inspected with sufficient specificity to enable the agency's custodian of records to identify and retrieve the records. Thus, "where the records sought are of an identified, limited class, the requester satisfied this condition". 92-ORD-1261, p. 3. The records to which Ms. Deatrick requested access consisted of a limited class, to wit personnel records, and were identified by name, to wit Billie Buell and Vincent Savatgy. It cannot be persuasively argued that the District's custodian could not identify and retrieve these records based on this description. This being the case, we find that it was incumbent on the District to "separate the excepted and made the nonexcepted material available for examination." KRS 61.878(4). To suggest that discharge of this statutory duty was more difficult because the records sought were located in employees' personnel files, as opposed to the wide range of files and possible file locations implicated in our example above, defies logic. We therefore find that a request for access to a personnel file requires no greater degree of specificity than any other open records requests, and that the agency must therefore "determine what is and is not subject to Open Records." Pursuant to KRS 61.878(4), the agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, site the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld.
Fortunately, there is a great deal of existing authority to guide the Berea Independent School District in making this determination. In 97-ORD-66, for example, this office opined:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's resume reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717, OAG 87-37, OAG 91-41, OAG 91-48, OAG 92-59, 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example OAG 78-133; OAG 91-20, OAG 92-34, 95-ORD-123; 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records. 94-ORD-108.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. See, for example, OAG 79-275; OAG 87-37; OAG 90-60; OAG 91-81; 94-ORD-91. Such matters are unrelated to the performance of public employment. Employee evaluations have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90.
97-ORD-66, p. 5. We urge the District to review these decisions in evaluating, and responding to, Ms. Deatrick's requests.
In closing we note that as with any open records request, if the agency can establish by clear and convincing evidence that the request "places an unreasonable burden in producing public records or . . . 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." KRS 61.872(6). Such a determination is case specific and the facts of the case before us do not support a claim of unreasonable burden.
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.
Sherry R. Deatrick120 North Second StreetRichmond, KY 40475
Gary Conkin, SuperintendentBerea independent Schools# 3 Pirate ParkwayBerea, KY 40403
Guy Colson, Attorney forBerea Independent School District300 West Vine Street6th Floor, Kincaid TowersLexington, KY 40507-1660
Footnotes
Footnotes
1 The cited decisions deal with public employee personnel files and prison inmate folders. To the extent that the holdings in these decisions deviate from the position announced today, they are hereby overruled.