Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Grant County Detention Center violated the Kentucky Open Records Act in denying Terry Whittaker's written request dated July 9, 2008, for "any and all personnel records" of Richard Brandon Marksberry, a former employee, including but not limited to his "employment application, training [records], education [records], disciplinary actions, evaluations, etc." Although Jailer Steven L. Kellam responded in a timely fashion, he merely noted that policy "requires a review and approval of our county attorney." In accordance with Grant County Attorney Jack Gatlin's instruction, Jailer Kellam then advised Ms. Whittaker "to contact him directly regarding" her written request for personnel records and provided her with contact information for Mr. Gatlin. Having been advised in a message left on her answering machine by Mr. Gatlin that such records are ". . . in litigation, or potential litigation, so it would be difficult to release those," and that her attorney should contact him to "discuss the channel that would need to be used" to access those records, Ms. Whittaker clarified, in a letter directed to Mr. Gatlin on July 11, 2008, that she was requesting the records under the Open Records Act. On July 15, 2008, Ms. Whittaker arrived to inspect the records because Mr. Gatlin had not made any further contact; however, Jailer Kellam denied her access based solely on
Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981), a copy of which Mr. Gatlin had forwarded to Jailer Kellam without explanation (referring to it as the "relevant case" to deny requests for "personal and private matters"), but which Ms. Whittaker had not received. By letter dated July 21, 2008, Ms. Whittaker initiated this appeal. 1 In sum, the response of the GCDC is both procedurally deficient and substantively incorrect.
Upon receiving notification of Ms. Whittaker's appeal from this office, Mr. Gatlin supplemented his response on behalf of the GCDC, again relying exclusively upon the referenced opinion (rather than later opinions applying KRS 61.878(1)(a) or decisions of this office following same) to support his position relative to KRS 61.878(1)(a). 2 Quoting the language of this exception, Mr. Gatlin asserts that Ms. Whittaker's "broad, unqualified request for all of Mr. Marksberry's personnel records necessarily involved the disclosure of information of a personal nature." According to Mr. Gatlin, a court order is therefore required for disclosure.
To the extent Ms. Whittaker's "all-inclusive request may have covered any unprotected information, [she] never gave any reason for the request, never specified the information [she] was seeking, and never provided any guidance which would have potentially narrowed the scope of the request." 3 Had she done so, "this may have allowed the agency to perhaps provide some information." This admission should not "be taken as a concession that the agency is willing to disclose, without court order, any personal information that is truly confidential." In Mr. Gatlin's view, the "mere fact that an individual accepts employment with a governmental body in no way lessens or waives his right to privacy. " Such an "intrusion" would be "illegal in the private sector" and "would discourage qualified individuals from seeking government employment"; accordingly, Mr. Gatlin and the GCDC "will zealously defend the privacy rights" of employees and former employees. In closing, Mr. Gatlin observes that Ms. Whittaker was notified in a voice mail that such records "were related to litigation or potential litigation concerning the [GCDC]. Several lawsuits have been filed against the [GCDC] and there has been ongoing litigation for a number of years." Given the broad nature of the request, he asserts that "it was impossible for the agency to determine if any of the information could be released." Because the position of the GCDC is contrary to binding precedents, in all respects, the GCDC should make the requested personnel file available for inspection during regular business hours in accordance with KRS 61.872(3); however, KRS 61.878(4) authorizes the agency to redact any excepted material after identifying the material being withheld and then articulating, in writing, the statutory basis for doing so in accordance with KRS 61.880(1).
Before addressing the substantive issues presented, this office is compelled to briefly comment on the procedural violations committed. As a public agency, the GCDC is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 4 More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, 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. (Emphasis added.)
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208; 04-ORD-163; 04-ORD-106. By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request, citing the applicable statutory exception and briefly explaining how it applies. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time."
Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999); this is a fundamental premise of the Open Records Act underscored by the mandatory response time of KRS 61.880(1). Although the burden on the agency to respond within three working days is not infrequently an onerous one, the only exception to this general rule is (5), which the GCDC did not invoke. 02-ORD-165, p. 3. See 01-ORD-140, pp. 3-7.
Here, Jailer Kellam did issue a written response to Ms. Whittaker's request on behalf of the GCDC within three business days, on the same day in fact (July 9, 2008), but merely referred her to legal counsel for the agency who, in turn, proceeded to communicate back and forth via telephone messages rather than issue a written response until July 15, 2008, when Ms. Whittaker came to inspect available records (after not receiving a response of any kind to her written clarification) , at which time Jailer Kellam provided her with a copy of the opinion relied upon by Mr. Gatlin; a copy of his final response was not mailed to Ms. Whittaker until July 18, 2008, at the earliest, which is beyond the permissible time frame. In short, neither the initial response nor the belated written response of the GCDC contains the specificity envisioned by KRS 61.880(1). Because the law in this area is well-established, this office will not belabor the point. With regard to procedural requirements of the Open Records Act in general, the analysis contained in 07-ORD-017 is controlling; a copy of that decision is attached hereto and incorporated by reference.
In addition to being procedurally deficient, a verbal response relying on the existence of "litigation, or potential litigation," is not legally supportable nor does the agency's unspecific reference on appeal to "[s]everal lawsuits" and "ongoing litigation" alter this conclusion. Although parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests, the Attorney General has consistently recognized that the presence of litigation does not suspend the duties of a public agency under the Open Records Act in a line of decisions dating back to 1982. Early on, this office recognized:
Although there is litigation in the background of an open records request under review, the requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the records.
OAG 82-169, p. 2 (emphasis added). Elaborating upon this view, the Attorney General subsequently observed that "[n]o exceptions to the general rules regarding inspection are provided for denying inspection of public records on the ground that litigation is either contemplated or in progress." OAG 89-53, p. 4. Shortly thereafter, the Attorney General reaffirmed the validity of this position, recognizing that requests under the Open Records Act "are founded upon a statutory basis independent of the rules of discovery. " OAG 89-65, p. 4. In the latter decision, this office clarified that such observations were not intended "to suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide." Id., p. 3. In sum, the Attorney General has recognized the potential pitfalls of using the Open Records Act in lieu of discovery; however, this office has not recognized the right of a public agency to deny access to public records on that basis. On this issue, 06-ORD-208 is controlling; a copy of that decision is attached hereto and incorporated by reference. See also 07-ORD-180; 03-ORD-213.
In
Kentucky Lottery Corporation v. Stewart, Ky. App., 41 S.W.3d 860, 864 (2001), the Kentucky Court of Appeals expressly agreed with the cited decisions of the Attorney General opining that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation," and so held. Citing
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), the Court reaffirmed the principle that the General Assembly "'clearly intended to grant any member of the public as much right to access to information as the next.'" Quoting the above passages from OAG 82-169 and OAG 89-65, the Court declined to interpret KRS 61.878(1) in such an "absurd and unreasonable" manner as to allow a nonparty to access nonexempt records while disallowing a party to access the same records. Stewart at 863. Thus, Ms. Whittaker "stands in relationship to" the GCDC under the Open Records Act as any other person. Id. Unless the records in question fall within one or more of the exceptions codified at KRS 61.878(1)(a)-(n), the agency is required to provide Ms. Whittaker with copies upon receipt of payment in accordance with KRS 61.874 after making necessary redactions. Equally unpersuasive is the assertion that a blanket denial of Ms. Whittaker's "broad, unqualified" request was justified.
In 03-ORD-012, 5 this office held that the Berea Independent School District had improperly denied a request for the complete personnel record s of named employees on the basis of KRS 61.878(1)(a). Reasoning that "a request for access to a personnel file requires no greater degree of specificity than any other open records request," the Attorney General concluded that the agency must "determine what is and is not subject to Open Records." Id., p. 7. More specifically, the "agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, [c]ite the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld" pursuant to KRS 61.878(4). Id. See 07-ORD-192. As this office has frequently observed, there is ample authority to guide a public agency in making this determination. Quoting extensively from 97-ORD-66, the Attorney General held:
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.
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 6 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.
03-ORD-012, p. 8, citing 97-ORD-66, p. 5; 03-ORD-213. 7 To summarize, "these opinions are premised on the idea that a person does not typically work, or attend school, in secret, and therefore the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment. " 93-ORD-32, p. 3; 00-ORD-090.
Even if this line of authority did not already establish that a request for a personnel file is adequately specific, the Kentucky Supreme Court recently articulated the standard for determining whether a request is framed with enough specificity in general under KRS 61.872(2), 8 the application of which further validates our conclusion. In
Commonwealth v. Chestnut, Ky., 255 S.W.3d 655, 661 (2008), the Court observed that in contrast to KRS 61.872(3)(b) 9 "nothing in KRS 61.872(2) contains any sort of particularity requirement." Id. at 661. Declining to "add a particularity requirement where none exists," the Court held that a request is adequately specific if the description would enable "a reasonable person to ascertain the nature and scope of . . . the request." Id. Because nothing more was required, and Ms. Whittaker "likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents . . . that [s]he had never seen[,]" the GCDC would also be required to provide her with an opportunity to conduct on-site inspection regardless of whether the relevant law otherwise validated her position. See 08-ORD-132. When viewed in conjunction, Chestnut and 03-ORD-012 refute the agency's position.
Based upon the foregoing, this office finds that the GCDC violated the Open Records Act in denying Ms. Whittaker's request for the personnel records of the named former employee. Neither the broad scope of the request nor the presence of litigation justifies the agency's blanket denial; likewise, KRS 61.878(1)(a) does not exclude a personnel file in its entirety from application of the Act. Because the file at issue contains both excepted and nonexcepted material, the GCDC may redact any excepted material and make the nonexcepted material available for inspection or copying after the GCDC identifies the material being withheld, and then articulates, in writing, the statutory basis for withholding the excepted material per KRS 61.878(4) 10 and KRS 61.880(1). To reiterate, "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." 03-ORD-128, p. 5, citing OAG 81-198, p. 4 (emphasis added).
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 In a letter dated July 22, 2008, Ms. Whittaker acknowledged receipt of a written response from Mr. Gatlin dated July 15, 2008, with "USPS postal processing marks of July 18, 2008, and July 19, 2008," both of which are "outside the scope of a timely response," on July 22, 2008. It suffices to say that Mr. Gatlin's written response, a copy of which is attached to Ms. Whittaker's letter, does not apply the law or contain the specificity envisioned by KRS 61.880(1), but instead contains a general summary of the requisite "balancing test" and quotes the language of KRS 61.878(1)(a).
As Ms. Whittaker correctly asserts, "[a]ny information contained in the personnel file representing an unwarranted invasion of personal [privacy] can be redacted or omitted." Further, any such redaction "can be explained in correspondence thereby offering a specific explanation as to denial of the particular document or information." As it stands, the GCDC has not offered any explanation of how KRS 61.878(1)(a) applies to the records withheld or "why any documents requested [are exempt] from public disclosure under the privacy exemption of the Open Records Act. " Therefore, Ms. Whittaker wishes to proceed with her appeal.
2 In Kentucky Board of Examiners of Psychologists v. The Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324, 328 (1992), the Kentucky Supreme Court established the standard under which this office must analyze the propriety of a public agency's reliance on KRS 61.878(1)(a) in denying access to public records, emphasizing that KRS 61.878(1)(a) contemplates a "case-specific approach." Shortly thereafter, the Court of Appeals refined this standard in Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), holding that a determination of whether disclosure "would constitute a clearly unwarranted invasion of personal privacy" involves a "comparative weighing of antagonistic interests." See 06-ORD-006, a copy of which is attached hereto and incorporated by reference, for the relevant analysis.
3 Contrary to Ms. Gatlin's implicit assertion, the identity of the requester and his or her purpose in requesting the records are legally irrelevant as the Attorney General has long recognized; likewise, the GCDC did not request clarification regarding the scope of Ms. Whittaker's request nor is more specificity required under the current standard. However, a request for clarification is not properly characterized as a denial, which the Attorney General has also consistently noted, and the need for appeal can sometimes be avoided with better communication.
4 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
5 At issue in 03-ORD-213 was whether the Laurel County Sheriff's Department had violated the Open Records Act in its disposition of a request for personnel records, including disciplinary records concerning specified officers and records generated by an internal investigation regarding a named individual. In concluding that the Department had committed a substantive violation of the Act, this office emphasized that the request was for the entire personnel files of the named officers rather than just disciplinary records contained in those files. 03-ORD-213, p. 2. Relying upon 03-ORD-012, the Attorney General disagreed with the Department's characterization of the remaining information as "personal." Likewise, this office cannot upold the blanket denial which prompted the instant appeal.
6 More recently, the Kentucky Court of Appeals affirmed the public's general right of access to personnel files of public agency employees and went one step further in requiring the disclosure of non-personal information contained in the performance evaluations of public employees when disclosure is warranted under the circumstances. Cape Publications v. City of Louisville, Ky. App., 191 S.W.3d 10 (2006). In other words, the Court rejected a "bright-line rule completely permitting or completely excluding from public disclosure employees' performance evaluations" in favor of a case-by-case approach. Although this office is unaware of any unique circumstances warranting disclosure of non-personal information contained in Mr. Marksberry's performance evaluation, this opinion signifies a judicial trend in favor of greater access; the position of the GCDC is at odds with this trend. See 08-ORD-023.
7 A public employee's date of birth may also be withheld per KRS 61.878(1)(a) as a personal detail generally accepted by society as carrying an expectation of privacy that outweighs the minimal public interest in disclosure. See 07-ORD-141; 04-ORD-143. Likewise, the Attorney General has recognized that home telephone numbers are protected under KRS 61.878(1)(a). See 00-ORD-97.
8 In relevant part, KRS 61.872(2) provides that "[a]ny person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected." (Emphasis added.)
9 Whereas KRS 61.872(2) merely requires a requester to "describ[e]" the records which he wishes to access by on-site inspection, KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to access by mail. "A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite," Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963)." Id.
10 KRS 61.878(4) provides: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for inspection. "