Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Education and Workforce Development Cabinet violated the Kentucky Open Records Act in partially denying Terri Brogan's October 12, 2010, request for "all records pertaining to [positions posted as 13937BR (Facilitator) and 13181BR/13182BR (Consultant)], including emails, notes, selection criteria, screening criteria, and interview process information." Following a short delay, to which Ms. Brogan apparently did not object, the Cabinet ultimately advised Ms. Brogan that all "responsive records relating to you are hereby being provided to you pursuant to KRS 61.878(3)." The Cabinet released a total of 128 pages of responsive documents; however, the Cabinet withheld application materials of unsuccessful applicants on the basis of KRS 61.878(1)(a), citing a line of prior decisions by this office in support of its position. Noting that she asked for documents "regarding three job postings, four separate positions, and only received information on two," and was not provided with "any of the documents pertaining to the two Facilitator positions (13937BR)," Ms. Brogan initiated this appeal by letter dated November 2, 2010. Although the Cabinet admittedly erred in failing to disclose all existing nonexempt records, the Cabinet remedied this error in releasing the application materials of the two successful applicants for the two Facilitator positions in response to her appeal. In accordance with governing precedents, the denial by the Cabinet as to records or portions thereof relating to unsuccessful applicants, the only records now in dispute, is affirmed on the basis of KRS 61.878(1)(a).
Upon receiving notification of Ms. Brogan's appeal from this office, attorney James C. Maxson responded on behalf of the agency, reiterating that "all apparent responsive documents" were provided; however, pursuant to KRS 61.878(1)(a), "as consistently interpreted by [this] Office in 96-ORD-1, 95-ORD-38, OAG 92-59, [and] OAG 90-113, the Cabinet withheld documents and information related to other unsuccessful [applicants], either by withholding documents in full when they wholly contained exempt materials, such as other unsuccessful applicants' applications, or by redacting exempt information when it appeared in a document together with non-exempt information." Refuting the allegation that his agency "has attempted to circumvent the open records law," Mr. Maxson submitted that charge is unfair but conceded that "unfortunately, it appears that it did inadvertently with[o]ld some documents which we[re] not exempt. " Mr. Maxson explained that "its having done so was entirely unintentional and the result only of [his] failure to fully understand the complicated circumstances surrounding the positions which Ms. Brogan had inquired about." 1
In any event, Mr. Maxson advised that because the Facilitator positions were actually filled, the Cabinet was making the "application materials related to the two successful applicants for the two facilitator positions" available to Ms. Brogan. As before, the Cabinet withheld "all information relating to other unsuccessful applicants . . . either in full when an entire document [was] exempt (such as an unsuccessful applicant's application), or in part when it appears in a document along with other non-exempt information." Based upon the following, this office affirms the ultimate disposition of Ms. Brogan's request.
In 03-ORD-084, the reasoning of which the Attorney General recently followed in 10-ORD-196 (copy enclosed) , this office analyzed KRS 61.878(1)(a) in the context of a request for information and records of unsuccessful applicants for public employment. Although a contrary outcome is dictated in the instant appeal, this office finds the following excerpt from 03-ORD-084 regarding application of KRS 61.878(1)(a) equally instructive on the facts presented:
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 (emphasis added)(copy enclosed) .
Significantly, as in 10-ORD-196, and in contrast with 03-ORD-084, there is no indication here that unsuccessful applicants for the specified positions did not maintain their privacy interest during the application/selection process or after the positions were filled. Under such circumstances, the Attorney General concludes that the Cabinet properly invoked KRS 61.878(1)(a) on their behalf. 10-ORD-196, p. 4. Here, as in that case, this office finds that the "unsuccessful applicants' interest in avoiding disruption in their current employment and maintaining their reputations is a significant one that cannot be casually dismissed." Id. Although the interest of the public in ensuring that a public agency selects the most qualified applicant is also significant, and should not be undervalued, the courts have recognized that disclosure of applicant materials does not necessarily best serve that interest. "[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). How the agency weighs different factors cannot be ascertained from a comparison of applicant materials. Because the identities of the applicants whose materials were requested here apparently had not been disclosed, and in light of the foregoing authorities, the Attorney General finds no error in the Cabinet's partial denial of Ms. Brogan'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.
Terri BroganJames C. Maxson
Footnotes
Footnotes
1 In processing Ms. Brogan's request, Mr. Maxson continued, his understanding was that "an applicant for the Facilitator position had not yet been selected, and that one of the Consultant positions, 13181, had . . . been closed as vacant, and that the other Consultant position, 13182, had been awarded to another candidate." Accordingly, the Cabinet "provided information for all these postings, but did not provide applicant information for the Facilitator posting because it was [his] understanding at the time that no successful applicant had yet been selected. The Cabinet did provide information relating to the successful applicant for the one Consultant position, 13182, which had been filled. "
After seeking further clarification, however, Mr. Maxson "learned that the 13937BR (Facilitator) posting was actually a single posting for two (2) different positions, both of which had been filled. " Mr. Maxson's initial misunderstanding "was the result of the somewhat unusual circumstances surrounding these postings (one posting having actually been for two different positions, and the other posting have been closed as vacant in part and filled in other part)," in addition to his "having had to solicit information and responsive records from numerous different people across different offices, in order to comply with the request."
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