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 Jefferson County Public Schools violated the Open Records Act in partially denying Douglas Lanier's October 25, 2008, request for "copies of any and all records JCPS has pertaining to [him] and employment . . . for the position of Director of District Personnel HR inclu[ding] all applications for employment, resumes, reference checks, and responses from previous employers." 1 For the reasons that follow, we find that JCPS violated both the procedural and substantive provisions of the Open Records Act in the disposition of Mr. Lanier's request.
In his letter of appeal, Mr. Lanier explained that on October 27 he received a telephone call from Diane Souder, JCPS Human Resources, who made arrangements for him to inspect and obtain copies of the records identified in his request on October 28, 2008. Upon arrival, Mr. Lanier continued, Ms. Souder advised him that "information provided by previous employers was confidential, " and that he could neither inspect nor copy it. It is from this partial denial of his request, and JCPS's failure to comply with KRS 61.880(1), that Mr. Lanier appeals.
In correspondence directed to this office following commencement of Mr. Lanier's appeal, Public Information Officer Lauren Roberts defended JCPS's disposition of his request. Ms. Roberts denied the alleged violation of KRS 61.880(1) which was based on JCPS's failure to issue a written response to Mr. Lanier in which the exception relied upon was cited and its application to any records withheld briefly explained. Ms. Roberts maintained that because Mr. Lanier "did not comply with the district's procedures" for requesting public records by directing his request to the Public Information Officer, the district could not be said to have "erred in failing to provide him with a written response to his request." 2 Nevertheless, she acknowledged that JCPS "erred in failing to notify Mr. Lanier that his request was misdirected, and in failing to provide him with the name and location of the district's official custodian. "
We will not lengthen this decision with a review of the statutory requirements for agency response to an open records request codified at KRS 61.880(1). JCPS has acknowledged its error in failing to promptly notify Mr. Lanier that Ms. Wheat is not the agency's official custodian of records and provide him with the official custodian's name and location. 3 Its failure to issue a written response to his request constituted a violation of KRS 61.880(1) that was not, in our view, mitigated by the misdirection of his request. JCPS indicates that it has undertaken measures to remedy these violations and, therefore, we will not belabor the issue.
In response to Mr. Lanier's argument that JCPS improperly denied him access to records provided by previous employers, Ms. Roberts quoted KRS 61.878(3), but observed:
The district requested this information from Mr. Lanier's references with assurances that the information would remain confidential. While we believe Mr. Lanier is entitled to the names of those individuals who provided a reference, we believe access to the reference letters was properly denied pursuant to KRS 61.878(1)(a) because disclosure of the references would constitute an unwarranted invasion of the privacy of the individuals who wrote the references; KRS 61.878(1)(i) because some of the references constitute correspondence with private individuals; and KRS 61.878(1)(j) because the reference letters constitute recommendations in which opinions are expressed. OAG 82-204; 93-ORD-32; 00-ORD-90.
It was JCPS's position that "KRS 61.878(3) provides a list of items that a public employee shall be permitted to inspect when they relate to him," but that this list "does not include references that were provided to the employer by individuals who had an expectation of privacy in the opinions they expressed." Accordingly, Ms. Roberts asserted, JCPS "is entitled to withhold Mr. Lanier's reference letters."
Respectfully, we disagree. KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
By its express terms, KRS 61.878(3) applies to public agency employees, applicants for employment, and eligibles on a register. As an applicant for public employment, Mr. Lanier is endowed with a broader right of access to records in JCPS's custody that relate to him than the public's general right to access to those records. In construing this provision, the Attorney General has opined:
KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) through (j), 4 with the exception of those noted in the concluding sentence of the provision [and records made confidential by state or federal law pursuant to KRS 61.878(1)(k) and (l)], when an open records request is submitted by a public agency employee, applicant for employment, or eligible on a register.
95-ORD-97, p. 4. It has been referred to as the "exception to the exceptions" to the Act, 93-ORD-19, p. 4, and "mandates release of otherwise exempt records" to public agency employees, applicants for employment, and eligibles on a register when the requested records relate to the requester. 95-ORD-97, p. 4. This includes records that are shielded from disclosure to the public generally by operation of KRS 61.878(1)(a), (i), and (j). We find that 05-ORD-226, and the authorities cited therein, is dispositive of the issues on appeal. A copy of that decision is attached hereto and incorporated by reference.
Mr. Lanier is entitled to inspect, and obtain copies of, all records maintained by JCPS that relate to his application for the position of Director of District Personnel, including all letters of reference or their functional equivalent. Our analysis is not altered by the fact that KRS 61.878(3) does not identify letters of reference provided by former employers as a record to which Mr. Lanier must be afforded access. The statute specifically states that "[t]he records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, lay-offs, disciplinary actions, examination scores, and preliminary and other supporting documentation. " Nor is our analysis altered by the fact that JCPS extended assurances of confidentiality to former employers who furnished the letters of recommendation. A commitment to maintain the confidentiality of a record will only be recognized by this office when it is consistent with one or more applicable exceptions to the Open Records Act. See 03-ORD-065 and authorities cited therein (enclosed). Although KRS 61.878(1)(a), (i), and (j) are arguably applicable to letters of reference when a request is made by someone other than the employee, applicant, or eligible to whom they relate, those exceptions are overridden by KRS 61.878(3) when the request is made by the employee, applicant, or eligible to whom the letters of reference relate. Mr. Lanier requested his "reference checks and responses from previous employers," and he is clearly entitled to these records. JCPS's partial denial of his request therefore constituted a violation of the Open Records Act.
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 Mr. Lanier submitted his request to Lynn Wheat, Director of Administrator Recruitment and Development for JCPS. Ms. Wheat forwarded the request to Diane Souder, records clerk for JCPS, who contacted Mr. Lanier on October 27.
2 Ms. Roberts provided this office with a copy of the district's procedures, adopted in compliance with KRS 61.876, but did not indicate how or where the procedures were posted. It is therefore unclear whether Mr. Lanier had a reasonable opportunity to familiarize himself with the procedures.
3 Since the requested records reside in JCPS's custody, Ms. Wheat, and any other JCPS employee to whom a request for JCPS records is misdirected, could simply forward the request to the Public Information Officer and avoid the delays associated with the implementation of KRS 61.872(4).
4 This office has not had occasion to consider whether KRS 61.878(3) overrides the exemptions to public inspection found at KRS 61.878(1)(m) and (n). Inasmuch as neither exemption is implicated by Mr. Lanier's request, we need not consider the question here.