Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Public Protection Cabinet violated the Kentucky Open Records Act in partially denying Lee A. Jackson's April 15, 2010, request for copies of documents related to the hiring of an environmental inspector. For the reasons that follow, we find no violation of the Act.
Mr. Jackson's letter, received by the Cabinet on April 19, 2010, requested copies of various records concerning the hiring of Joshua George, Environmental Inspector I, Division of Water. At issue in the present appeal is his request for "[a]ll documents including interview questions used and associated with the job interviews conducted by Mr. Damon White (Supervisor Division of Water) on December 23, 2009 for the position of Environmental Inspector I."
On April 22, 2010, Human Resource Management Director Susan G. Smith replied to advise Mr. Jackson of the cost for the records that had been copied, and further stated: "Some information has been redacted pursuant to KRS 61.878(1)(a). In addition, interviewer notes, interview responses, resumes, applications and other documents related to unsuccessful applicants have been withheld pursuant to KRS 61.878(1)(a)(i) and (j)." Mr. Jackson initated this appeal on April 26, 2010.
Mr. Jackson states in his letter of appeal: "The records were withheld pursuant to KRS 61.878(1)(a)(i) and (j). We believe the records requested are no longer preliminary because the interviews have been completed and an applicant selected. The applicant selected was appointed effective 02-01-10." In the Cabinet's response to the appeal, dated May 4, 2010, La Tasha Buckner, Deputy Executive Director, Office of Legal Services, advises that there should have been a comma after "(a)" in the agency's April 22 letter so as to read "KRS 61.878(1)(a), (i) and (j)," so as to eliminate any doubt that the Cabinet intended to invoke KRS 61.878(1)(a). Substantively, Ms. Buckner relies upon the Attorney General's prior decisions finding that records of unsuccessful applicants for employment are protected by that subsection as "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." Since we find KRS 61.878(1)(a) dispositive of this appeal, we do not address the applicability of subsections (1)(i) and (1)(j).
It has long been the position of this office that employment application materials of unsuccessful applicants are exempt from public disclosure pursuant to KRS 61.878(1)(a). We consider 04-ORD-003 and 00-ORD-90 (copies attached) to be controlling in this case and adopt them as the basis of our decision in this appeal. See also 07-ORD-093; 02-ORD-221; 01-ORD-88. Accordingly, we find no error in the Public Protection Cabinet's denial of the specified records relating to the unsuccessful applicants.
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 proceedings.
Lee A. JacksonLa Tasha Buckner, Esq.Susan G. Smith