Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Cabinet for Health and Family Services violated the Open Records Act in partially denying Courier-Journal reporter Deborah Yetter's May 10, 2010, request for copies of:
. Kindra Kilgore's 2009 grievance and all records relating to the grievance;
. Kindra Kilgore's personnel records from October 12, 2009, to the present;
. Northern Bluegrass Service Region Administrator Lisa Prewitt's personnel records.
Specifically, we find that the Cabinet's reliance on KRS 61.878(1)(a) to support nondisclosure of Ms. Kilgore's performance evaluation and partial nondisclosure of her 2009 grievance was misplaced. We are not persuaded by the Cabinet's argument that "because the grievance dealt with Ms. Kilgore's interim evaluation and comments thereon, in accordance with KRS 61.878(1)(a), 10-ORD-096, and 07-ORD-125, unless the employee has engaged in a crime or misconduct as a result of their position, the records were exempt from disclosure and, therefore, had been redacted." Consistent with 10-ORD-096, we affirm the Cabinet's denial of that portion of Ms. Yetter's request implicating Ms. Prewitt's evaluation, notwithstanding the compelling arguments advanced by The Courier in support of disclosure. 1
In the interest of brevity, we will dispense with a recitation of the arguments advanced by the parties. Having considered those arguments, we find that the public's interest in the issues which Ms. Kilgore brought to light through her grievance outweighs Ms. Kilgore's privacy interest in the contents of that grievance and the evaluation that prompted it that was asserted on her behalf by the Cabinet without consulting her in this matter. That grievance was prompted by her belief that she was retaliated against in her evaluation for criticism of the Cabinet in discharging its duties relative to abused and neglected children. Having previously affirmed the Cabinet's denial of Ms. Kilgore's request for Ms. Prewitt's evaluation, based on "the absence of any specific facts indicative of a public interest in disclosure . . . that outweighs the privacy interest of the individual," we are bound by precedent to affirm its denial of that portion of Ms. Yetter's request.
As in all open records decisions addressing personal privacy in the context of personnel records issued by this office after the Kentucky Court of Appeals opinion in Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006), we are guided by the court's repudiation of "bright-line rules completely permitting or completely excluding [public records] from disclosure. " Regardless of whether the public record at issue is a grievance, a performance evaluation, or any other record arguably implicating personal privacy, we proceed on "the case-by-case analysis required by the outstanding law on the Open Records Act, " id., with the understanding that "the Act is weighted toward disclosure . . . ." Id. at 12, citing Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). After Cape Publications v. City of Louisville, above, we focus on the extent to which disclosure "would shed light on the operation of the public agency" while attempting to prevent embarrassment to the subject of the records "through release of purely personal information that does not serve the public interest. " Id.
Although Cape Publications v. City of Louisville, above, involved a parks department employee who "commit[ted] a criminal act made possible by his position in a public agency, " the court did not defy its own logic by establishing "a bright-line rule permitting disclosure" only where the public employee who was the subject of the record committed a criminal act facilitated by his or her position. Instead, the court examined the extent to which the public employee "forfeited his privacy interest, and the public interest in the details of the operation of the public agency could be advanced by the disclosure of non-personal information contained in the [record]." Id. at 14. It is for this reason that we find the Cabinet's argument with regard to portions of Ms. Kilgore's grievance and her entire performance evaluation unpersuasive. The fact that she has not "engaged in a crime or misconduct as a result of [her] position" is by no means dispositive of the issue on appeal. Such a "bright-line rule[] permitting or exempting disclosure [is] at odds with controlling precedent." Id.
Ms. Kilgore has made no secret of her concerns about staff issues in the Northern Bluegrass Service Region of the Cabinet's Department of Community Based Services. She has initiated no less than four open records appeals with this office, all of which relate directly or indirectly to those concerns and possible retaliation for voicing those concerns, and all of which are a matter of public record. She filed a complaint through the Office of the Governor in early 2010 without fear of exposure. From these facts, we can deduce that she has willingly forfeited her privacy interest in her grievance and the evaluation that gave rise to it. Yet, notwithstanding the recognition in Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575 (Ky. 1994) of "an expansive right of persons who might be affected by release of governmental information to be heard on their privacy claim," 2 the Cabinet did not ask Ms. Kilgore, or Ms. Prewitt, if either objected to disclosure of the records identified in Ms. Yetter's request. While 10-ORD-096 obviates speculation as to Ms. Prewitt's wishes, we are confident that Ms. Kilgore would not object to disclosure of her evaluation and grievance.
Regardless of Ms. Kilgore's wishes, we find that the public's interest in disclosure of the evaluation of an employee who has "gone public" relative to her criticisms of staff problems within the agency that employs her, and the grievance she filed based on her belief that comments in her evaluation were retaliatory, outweighs the privacy interest asserted by the Cabinet on her behalf insofar as those records "shed light on the operation of the agency." Cape Publications v. City of Louisville at 14. This is especially true in view of the critical role her employer plays in "provid[ing] family preservation services" 3 and combating domestic violence, and abuse, neglect, and exploitation of adult and child victims. 4 While there may be occasions when, in applying the case-by-case analysis established by the courts, we find that the privacy interest of a public employee who has identified problems within his or her agency in his or her evaluation or grievance outweighs the public's interest in monitoring agency conduct, here we find that the balance tips in favor of disclosure.
In 10-ORD-096 the Attorney General determined that the Cabinet properly denied Ms. Kilgore's request for a copy of Ms. Prewitt's 2009 evaluation. While the Kentucky Supreme Court has recognized the authority of this office to re-examine its prior decisions and depart from its precedents, we have "an obligation to explain" why we are departing from precedent. Commonwealth v. Chestnut, 250 S.W.3d 655, 663 (Ky. 2008), citing In re Hughes and Coleman, 60 S.W.3d 540, 544 (Ky. 2001) for the proposition that "an administrative agency departing from its precedent" must explicitly and rationally justify such a change of position. Because we cannot, at this time, rationally justify departing from 10 -ORD-096, we are obliged to affirm the Cabinet's denial of this portion of Ms. Yetter's request.
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.
Jon L. FleischakerAnne E. Burnham
Footnotes
Footnotes
1 The Cabinet also withheld these portions of responsive records containing information of a personal nature that included, e.g., social security numbers, bank records, health insurance records, home addresses, and home telephone numbers. The Courier raises no objections to the partial nondisclosure of these records, and, based on existing legal authority, we find no error in these redactions.
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2 Accord, Lexington-Fayette Urban County Government v. Lexington Herald-Leader, 941 S.W.2d 469 (Ky. 1997).
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3 KRS 200.585.
4 KRS 194A.545.
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