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 Whitley County School District properly relied on KRS 61.878(1)(a) in partially denying Paul Cummins' May 18, 2010, request for copies of the resumes of all applicants for district superintendent. In so holding, we are mindful of the Court of Appeals' admonition that "[a] bright-line rule completely permitting or completely excluding from disclosure public . . . [records] is at odds with existing law."
Cape Publications v. City of Louisville, 191 S.W.3d 10, 13 (Ky. App. 2006). Although there are few matters of greater public interest than the interest in insuring that the most qualified applicant is chosen for school superintendent, we cannot compel disclosure of the unsuccessful applicants' resumes, in furtherance of that public interest, without compromising the applicants' privacy interest.
On May 27, 2010, the District notified Mr. Cummins that the resume of the successful applicant for the position would be disclosed to him after purely personal information, consisting of home address, home telephone number, and personal cell phone number, was redacted. The District denied his request for the resumes of unsuccessful applicants explaining that "disclosure would provide information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " In support of its position, the District cited KRS 61.878(1)(a) as interpreted in OAG 90-113, 96-ORD-1, 99-ORD-14, 04-ORD-003, and 08-ORD-121.
Shortly thereafter, Mr. Cummins initiated this appeal emphasizing the compelling public interest in scrutinizing the selection process and ascertaining the qualifications of the thirteen unsuccessful applicants. He focused on the District's unfavorable standing in the state's district ranking, its students' poor performance on the ACTs, and the "political ties" that have historically influenced the superintendent selection process. 1 In supplemental correspondence directed to this office after Mr. Cummins initiated his appeal, the District refuted his allegations, noting their lack of relevance to the pending open records matter, but did not expand on its view that KRS 61.878(1)(a) authorized nondisclosure of the unsuccessful applicants' resumes. Upon request submitted under authority of KRS 61.880(2)(c), 2 the District provided this office with copies of the disputed resumes for in camera inspection. In response to our request for a copy of the screening committee's written recommendation, the District advised that the committee verbally communicated its recommendation through counsel. Having reviewed the disputed resumes, we see no viable "method by which the public interest in the performance of public officials may be served while preserving the privacy interest of individuals," 3 Cape Publications at 13, and affirm the District's partial denial of Mr. Cummins' request.
In an open records decision issued in 2003, the Attorney General analyzed the application of KRS 61.878(1)(a) to records submitted by an unsuccessful applicant for public office. 03-ORD-084. At page 4 of that decision, we observed:
The courts have established the standard by which we analyze the propriety of a public agency's reliance on KRS 61.878(1)(a) to deny access to public records. In Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Kentucky Supreme Court recognized that the Open Records Act "exhibits a general bias favoring disclosure, " Id. at 327, and formulated a balancing test in which the public's interest in insuring that its agencies are properly executing their statutory functions is measured against an individual's interest in the nondisclosure of records containing information that touches upon the intimate or personal features of his or her life. Resolution of the question of the propriety of the agency's reliance on KRS 61.878(1)(a) turns on whether the offense to personal privacy which would result from disclosure of the information outweighs the benefit to the public. As noted, the "clearly unwarranted" language found in KRS 61.878(1)(a) tips the scales in favor of disclosure.
With specific reference to application materials submitted by unsuccessful applicants, this office has consistently affirmed agency denial of access on the basis of KRS 61.878(1)(a). For example, in OAG 90-113, 95-ORD-38, 96-ORD-1, 97-ORD-72, 00-ORD-90 and 02-ORD-221, the Attorney General held that the public agencies to which the requests were directed properly withheld applications and resumes of unsuccessful applicants whose identities were not known. Synthesizing the rationale underlying these decisions, in 02-ORD-221 we observed:
03-ORD-084, p. 4, 5 (copy enclosed). In that decision, we concluded that an application letter submitted by a state representative in his public, but ultimately unsuccessful, bid to become president of Eastern Kentucky University, must be disclosed. Recognizing that this represented a departure from the position we had traditionally taken, we focused "not on the level of responsibility attached to the position for which application was made, . . . but . . . on the fact that the protected privacy interests upon which the earlier decisions were postulated are no longer implicated when the applicant's identity has been disclosed and the fact of application publicly acknowledged by the applicant." Id.
Neither Mr. Cummins nor the District indicate that any of the thirteen unsuccessful applicants for superintendent of the Whitley County Schools publicly acknowledged that they were seeking the office. From this, we must deduce that they maintained their privacy interest during the application and selection process and after an appointment was made. Under these circumstances, we find that the District properly asserted KRS 61.878(1)(a) on their behalf. The unsuccessful applicants' interest in avoiding disruption in their current employment and maintaining their reputations is a significant one that cannot be casually dismissed. Although the public's interest in insuring that the best qualified applicant is selected cannot be understated, the courts have recognized that the interest is not always served by disclosure of application materials. "[C]omparison of all application materials may be misleading" the federal courts have commented, "because the appointments [are] made on the basis of . . . the application and interviews" as well as other factors.
Core v. United States Postal Service, 730 F.2d 946, 949 (4th Cir. 1984). The record in the appeal before us, for example, contains a newspaper article in which board members are quoted as having expressed a preference for a local applicant with knowledge of the District. How these and other factors are weighted by the appointing authority cannot be ascertained from a comparison of application materials. Although we are aware that "bright-line rules permitting or exempting disclosure are at odds with controlling precedent," Cape Publications at 14, the facts of this case support the Whitley County School District's actions and our decision does not rest on a bright-line rule exempting disclosure. We find that the privacy interests of the unsuccessful applicants whose identities were not made public outweigh the public's interest in disclosure and affirm the District's partial denial of Mr. Cummins' 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. Paul CumminsScott PaulTimothy Crawford
Footnotes
Footnotes
1 Mr. Cummins questions the selection process employed in the appointment of the current superintendent. The Attorney General is not authorized to review that process except to the extent that it raises legitimate open meetings or open records issues.
2 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
3 Even if the applicants' names were redacted, it would require little effort to identify each of them based on the extensive professional and personal information they provided.