Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Burlington Fire Protection District properly relied on KRS 61.878(1)(a) in denying David R. Long's June 30, 2008, request for "a copy of former firefighter Brian M. Anderson's entire personnel file, including but not limited to, all records and documents pertaining to complaints, investigations, and disciplinary actions." For the reasons that follow, we find that the Fire District's reliance on KRS 61.878(1)(a) as the basis for denying Mr. Long's request in its entirety was misplaced.
In his July 8, 2008, response to Mr. Long's request, Chief Jeff Barlow explained that although the Fire District "desires an open and transparent operation[, . . .] when dealing with personnel information rather than operational information, there is an expectation of the organization to maintain individual personal privacy as well." In closing, Chief Barlow suggested that Mr. Long "provide a more specific request accompanied by a citation that would indicate the requirement for disclosure. "
It is not incumbent on Mr. Long to provide "a citation that would indicate the requirement for disclosure. " This office would, however, submit that the "citation . . . requir[ing] . . . disclosure" is KRS 61.870 to KRS 61.884, the Kentucky Open Records Act. That statute declares that "[a]ll public records shall be open for inspection by any person," 1 that "[a]ny person shall have the right to inspect public records, " 2 and that "free and open examination of public records is in the public interest . . . even though such examination may cause inconvenience or embarrassment to public officials or others." 3 In construing these provisions, Kentucky's courts have opined that the Open Records Act:
exhibits a general bias favoring disclosure. An agency that would withhold records bears the burden of proving their exempt status[.]
. . .
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327-328 (Ky. 1992). In a recent opinion, the Kentucky Supreme Court affirmed the public's right of access to inmate files, and, by analogy, public employee personnel files. At page 660 of Department of Corrections v. Chestnut, 250 S.W.3d 655 (Ky. 2008), the Supreme Court applied the 'presumption in favor of broad availability of public records" in determining that an inmate was entitled to inspect the nonexempt portions of his institutional file. The Court referenced an Attorney General's open records decision involving access to public employees' personnel files, characterizing "the Attorney General's decision to extend its treatment of [public] employee's personnel files to an inmate's request to see his own inmate file" as "logical" and "not arbitrary." Id. at 663.
In that open records decision, 03-ORD-012, the Attorney General held that a request for a public employee's personnel file was proper and that the public agency to which the request was directed "was obligated to locate the records, review the records, and disclose all nonexempt documents in the records to [the requester] ." 03-ORD-012, p. 1. Further, we found that the agency "was obligated to identify and withhold those exempt documents for which statutory protection exists from the requested personnel records and provide [the requester] with a written explanation including citation to the statute authorizing nondisclosure. " Id. A copy of 03-ORD-012 is attached hereto and incorporated by reference.
Contrary to the Fire District's belief, the Attorney General has never approved blanket nondisclosure of a public employee's personnel file on the basis of KRS 61.878(1)(a) or any other exception to the Open Records Act, and the publication to which the Fire District refers, Your Duty Under the Law, does not support this construction of the law. The publication explains that KRS 61.878(1)(a) through (j) are discretionary exceptions, recites the language of KRS 61.878(1)(a), the privacy exception, and suggests that an agency exercise caution before waiving the privacy exception and releasing records that contain information of a personal nature the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Neither the courts nor this office have determined that the contents of a public employee's personnel file are entirely shielded from disclosure by operation of KRS 61.878(1)(a). Instead, this office has determined that only those records, or portions of records, in a public employee's personnel file that are unrelated to the performance of his or her public duties may properly be withheld under the privacy exception.
As we noted at page 7 and 8 of 03-ORD-012, "there is a great deal of existing authority to guide" a public agency in making this determination:
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. 4
03-ORD-012, p. 7, 8, citing 97-ORD-66.
We therefore find that the Burlington Fire Protection District improperly relied on KRS 61.878(1)(a) in denying Mr. Long's request for former firefighter Brian M. Anderson's personnel file in its entirety. Under the line of authorities cited above, it is incumbent on the District to review Mr. Anderson's file and, consistent with the guidelines discussed in 03-ORD-012, disclose all records related to Mr. Anderson's performance of his public duties and withhold only those records unrelated to his performance of his public duties. With regard to the latter, it is incumbent on the District to describe, in general terms, the records withheld, cite the statutory exception authorizing nondisclosure, and explain how that exception applies to the records withheld. KRS 61.880(1); Edmondson v. Alig, 926 S.W.2d 856 (Ky. App. 1996).
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 KRS 61.872(1).
2 KRS 61.872(2).
3 KRS 61.871.
4 In Cape Publications v. City of Louisville, 191 S.W.3d 10, 13 (Ky. App. 2006), the Kentucky Court of Appeals recognized that a public employee's performance evaluation was not protected from disclosure by KRS 61.878(1)(a) where the public's interest in disclosure outweighed the employee's privacy interest, as, for example, when the employee "used his position to commit a crime."