Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Cabinet for Health and Family Services violated the Open Records Act in the disposition of Hershell B. Sheets' November 6, 2004, request for information and records relating to the Cabinet's Fivco Regional Office. For the reasons that follow, we find that the Cabinet substantially complied with the Act in the disposition of his request.
Mr. Sheets' November 6 request consisted of twelve subparts, most of which were framed as requests for information as opposed to requests for public records. That request went unanswered, prompting him to initiate an open records appeal to the Attorney General. In his letter of appeal, Mr. Sheets indicated that as of February 10, 2005, he had received no response to his request other than "a letter date 11/12/04 from Freddie Williams, Records Management Section, Division of Protection and Permanency acknowledging receipt of [the] request and another letter acknowledging [the] request dated 11/24/04 from Frederick L. Williams, Records Management Section stating that [the] request had been forwarded to Gil Lawson, Office of Communication."
Upon receipt of this office's notification of Mr. Sheets' open records appeal, Assistant General Counsel John H. Walker responded on behalf of the Cabinet advising that "the mail log of the Office of Legal Services does not show that the office received Mr. Sheets' correspondence in November, 2004," but further advising that the Cabinet "has acted quickly to fill his request for information." Mr. Walker furnished this office with a copy of the Cabinet's response to Mr. Sheets, indicating that "the Cabinet is continuing to locate information in response to one of [his] requests and has given him a date of March 1, 2005 for receipt of final action."
The attached response to Mr. Sheets' request, dated February 16, 2005, and issued by J. P. Hamm, Executive Director, notified Mr. Sheets that "the Open Records Act requires agencies to provide documents or records but does not require that an agency provide 'information.'" Nevertheless, Mr. Hamm advised, the Cabinet "made an effort to locate and provide [him] with documents which contain the information [he] seek[s]."
Our review of Mr. Hamm's response confirms that the Cabinet honored, in whole or in part, nine of Mr. Sheets' requests, providing him with copies of existing public records containing the information sought or, alternatively, narrative responses to his questions. The issue on appeal is whether the Cabinet properly withheld a letter of recommendation submitted on behalf of a named employee of the Carter County Office on the basis of KRS 61.878(1)(i) and personal information relating to that employee appearing in her employment application on the basis of KRS 61.878(1)(a). It is the decision of this office that the Cabinet did not violate the Open Records Act in withholding these materials.
We begin by noting that the Attorney General is not equipped to resolve a factual dispute concerning the actual delivery and receipt of Mr. Sheets' November 10 open records request. Although he maintains that the request was mailed to the Cabinet, Mr. Sheets offers no proof of receipt, such as a return receipt following delivery of a certified letter. 1 Nor does he attach copies of the letters he indicates he received from Frederick L. Williams, Records Management Section, acknowledging receipt of his request. Conversely, Mr. Walker asserts that the Office of Legal Services' mail log does not reflect receipt of Mr. Sheets' request. If Mr. Sheets' request did not reach the Cabinet, for whatever reason, that agency should not be faulted for its failure to respond. KRS 61.880(1); 02-ORD-109; 02-ORD-226. If, on the other hand, Mr. Sheets' request was misdirected to the Office of Communication, or otherwise mishandled, thereby postponing agency response and release of the records identified in that request, the Cabinet should implement measures aimed at insuring the timely processing of open records requests.
Turning to the substantive issues in this appeal, we find that the Cabinet properly relied on KRS 61.878(1)(i) in denying Mr. Sheets' request for the letter of recommendation submitted on behalf of the named employee, and thereafter fulfilled its obligations under the Open Records Act by providing him with the name of the individual who recommended that employee. Further, we find that the Cabinet properly relied on KRS 61.878(1)(a) in redacting personal information from the employment application of the employee identified by name in Mr. Sheets' request. In 93-ORD-32, the Attorney General analyzed these issues in considerable depth, opining:
This Office has, since 1989, consistently recognized that the inspection of the personnel records of public employees, such as applications for employment and resumes, which contain relevant prior work experience and educational qualifications, does not constitute an invasion of privacy. OAG 89-90; OAG 90-113; OAG 91-48; OAG 91-155; OAG 91-176; OAG 91-202; OAG 92-59; OAG 92-85. These opinions are premised on the idea that a person does not typically work, or attend school, in secret, and that therefore the employee's privacy interest in such information is outweighed by the public's right to know that that employee is qualified for public employment. Thus, in OAG 89-90, at p. 8, we observed:
Nevertheless, we also concluded in OAG 89-90 that information on an application or resume that is of a personal nature, within the meaning of KRS 61.878(1)(a), may be separated and redacted in accordance with KRS 61.878(4). Such information includes, but is not limited to, an employee's home address, social security number, and medical information.
93-ORD-32, p. 4, 5. With reference to the names of persons providing recommendations, and the letters of recommendation themselves, we observed:
This Office has previously recognized that "a person's name is personal but it is the least private thing about him . . . . The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order (i.e., adoption records)." OAG 82-234, at p. 3. Although the public's interest in disclosure of the references submitted by a public employee is less compelling than its interest in knowing the employee's qualifications for public employment, we believe it is superior to the references' minimal privacy interest in their names. Accordingly, we find that [agencies] must release the names of references appearing on job applications and related documents, but may withhold information of a personal nature relative to the references, including but not limited to their phone numbers, addresses, and relationship to the applicant.
We do not mean to suggest that [agencies] must release letters of reference submitted on behalf of its employees. In OAG 91-48, we expressly declined to extend the reasoning of OAG 89-90 to letters of reference. There, we held that inspection of letters of reference could be denied pursuant to KRS 61.878(1)[(i)], which exempts from public inspection "correspondence with private individuals." Such letters are not "correspondence between two public officials on public business within the contemplation of the Act, and are therefore exempt. " OAG 91-48, at p. 3.
93-ORD-32, p. 56. Here, as in 93-ORD-32, we affirm the Cabinet's denial of Mr. Sheets' request for personal information in an employment application and a letter of recommendation on the basis of KRS 61.878(1)(a) and (i).
In closing, we note that the Cabinet committed itself to disclosure of the remaining records/information requested by March 1, 2005, and this office has not been apprised whether the Cabinet fulfilled its commitment. If it has not already done so, the Cabinet should take immediate steps to produce the requested records/information relating to the "cost of operating the Fivco Regional Office in addition to payroll" and the named employee's "time and attendance report for the month of May, 2004." We trust that in so doing, the Cabinet will resolve any lingering records access issues.
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.
Footnotes
Footnotes
1 The Open Records Act does not require a requester to submit his request by certified mail, return receipt requested. Regular mail delivery is sufficient under the Act. KRS 61.872(2). A return receipt for certified mail would, however, provide proof of actual delivery of the request.