Request By:
Missy McKiernan
Jay Klein
Jon R. Klein
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the actions of the Cabinet for Health and Family Services, Division of Employee Management, relative to Missy McKiernan's written request for "a copy of the investigation completed by Martin Anderson at Central State ICF/MR in Louisville, Kentucky regarding allegations about the hiring and selection of selected staff at the facility between the dates of April 16, 2007, and September 1, 2008," violated the Kentucky Open Records Act. Although the CHFS initially violated KRS 61.880(1) in failing to provide a brief explanation of how the cited exception applied to the records being withheld, the agency provided the records to Ms. McKiernan in response to her appeal. Redaction of specified information is justified on the basis of KRS 61.878(1)(a).
By letter dated December 18, 2008, Jay Klein denied Ms. McKiernan's request on the basis of KRS 61.878(1)(i), quoting the language of that exception without explanation. Ms. McKiernan subsequently initiated this appeal, requesting a decision regarding the validity of Mr. Klein's denial. Upon receiving notification of Ms. McKiernan's appeal from this office, Jon R. Klein, Assistant Counsel, responded on behalf of the CHFS by letter dated January 20, 2009, initially noting that Jay Klein, who supervises the Division of Employee Management, had correctly denied the request on the basis of KRS 61.878(1)(i) ; however, Jay Klein subsequently informed Ms. McKiernan by separate letter of the same date that "the report she requested is no longer considered preliminary, and that the [CHFS] will mail her a copy upon payment of copying and postage costs." As Mr. Klein observes, Jay Klein's letter also "correctly points out that under existing law certain information will be redacted from the report," including social security numbers, dates of birth, home addresses, race and gender information, interview questions and answers, information about unsuccessful applicants, and college transcript information. 1
In relevant part, Jay Klein advised Ms. McKiernan as follows:
Personal and private information includes social security numbers, date[s] of birth, home address[es], and race and gender information. . . . To release the questions and answers provided by the applicants would give an unfair advantage to applicants in future interviews. Further, information relating to the unsuccessful candidate has been redacted from the Selection Worksheet, in accordance with the privacy exclusion in KRS 61.878(1)(a) as the Attorney General has determined that information relating to unsuccessful applicants is not an open record. (See 95-ORD-38 and 97-ORD-72).
Also, in OAG 89-90, the Attorney General held that college transcripts are not subject to inspection. In contrast, this office declared that "inspection of an employment application or resume must be permitted regarding work experience and educational levels attained . . . that are reasonably related to qualifying for public employment. " OAG 89-90, p. 10. See also, OAG 91-48. We continue to ascribe to the view that the public's right to know does not extend to such minutia as classes taken and grades received.
Based upon the following, this office affirms the ultimate disposition of Ms. McKiernan's request.
As a public agency, the CHFS must adhere to procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. 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 .
(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. Here, the requisite brief explanation of how the statutory exception relied upon by the CHFS applied to the record(s) withheld is lacking from the agency's initial response. Public agencies must not only cite the applicable exception, but also provide a brief explanation of how that exception applies to the records or portions thereof withheld per KRS 61.880(1), in order to satisfy the burden of proof imposed by KRS 61.880(2)(c). 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As consistently recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied , 415 U.S. 977 (1974), we believe that [a public agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106. Similarly, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3) . It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof . . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2.
In relying upon KRS 61.878(1)(i), the CHFS merely parroted the language of this provision. Bearing in mind that public agencies like the CHFS have the burden of proof in denying requests under KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office must conclude that the initial response of the CHFS was procedurally deficient. Edmondson v. Alig, supra at 858; See 97-ORD-170. In responding to future requests, the CHFS should be guided by the longstanding principle that procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-080; 02-ORD-187. That being said, the CHFS has remedied this error on appeal.
Given that the CHFS has now agreed to honor Ms. McKiernan's request upon receipt of the copying fees and postage costs, in accordance with KRS 61.874(1), the question becomes whether the CHFS is authorized to redact personal information such as social security numbers, dates of birth, home addresses, home telephone numbers, etc. of persons identified in the records. Because the law is well-established as to application of KRS 61.878(1)(a), this office will not belabor the point. Applying the standard first articulated by the Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992), and later refined by the Kentucky Court of Appeals in Zink v. Commonwealth of Kentucky, Ky. App., 925 S.W.2d 825 (1994), this office has consistently recognized that such information is confidential and can properly be withheld on the basis of KRS 61.878(1)(a) in various contexts. In 06-ORD-036, for example, the Attorney General reaffirmed this principle in upholding a denial of a request for "contact information" of substitute teachers, reiterating that public employees "are accountable to the public with respect to the performance of their duties," but even they "do not surrender their right to privacy in this personal information by virtue of their public employment. " Id., p. 9. Both the courts and this office have consistently recognized that any public interest in disclosure of this personal information is outweighed by the substantial privacy interests of private citizens. With regard to application of KRS 61.878(1)(a) generally, and relative to redaction of social security numbers, dates of birth, home addresses, and home telephone numbers in particular, the analysis contained in 06-ORD-036 is controlling; a copy of that decision is attached hereto and incorporated by reference.
Similarly, this office has long recognized that "an individual has at least some expectation of privacy as to his or her race or gender" as both "are inherent characteristics of the individual employee and are not directly indicative of how that employee is performing his or her duties." 96-ORD-232, p. 6. In our view, the analysis contained in 96-ORD-232 is controlling on the facts presented; a copy of that decision is attached hereto and incorporated by reference. As in 96-ORD-232, this office finds that disclosure of the individuals' race and gender information would constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a). In the absence of a superior public interest in disclosure, interview questions and answers may also be withheld on the basis of KRS 61.878(1)(a) 2 per 00-ORD-90, a copy of which is attached hereto and incorporated by reference, and the authorities upon which that decision is premised. Likewise, this office has consistently upheld agency denials of requests for application materials submitted by unsuccessful applicants for public employment based on KRS 61.878(1)(a). On this issue, the reasoning found 08-ORD-121 is controlling; a copy of that decision is attached hereto and incorporated by reference. See 00-ORD-90, pp. 5-7. Finally, this office finds no error in the refusal of the CHFS to provide college transcript information, but continues to "ascribe to the view that the public's right to know does not extend to such minutia as classes taken and grades received." 3 00-ORD-126, p. 5; OAG 89-90. A copy of each decision is attached hereto and incorporated by reference. Because the instant appeal presents no reason to depart from governing precedents, the agency's partial denial of Ms. McKiernan's request is affirmed.
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 existing law upon which the CHFS relies is KRS 18A.020(4), 61.878(1)(a) and (i), 95-ORD-38, 97-ORD-72, OAG 89-90, and OAG 91-48.
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2 Because KRS 61.878(1)(a) authorizes redaction of this information, this office does not address the alternative bases for denial other than to note that KRS 18A.020(4) does not apply here.
3 In contrast, " inspection of an employment application or resume must be permitted regarding work experience and educational levels attained . . . that are reasonably related to qualifying for public employment. " OAG 89-90, p. 6.
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