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 although the City of Bowling Green relied on KRS 61.878(1)(a), as construed in a line of decisions issued by this office involving access to records of applicants for public employment, those decisions are not dispositive of the issue on appeal insofar as they did not involve access to records of applicants seeking appointment to a vacant elective office. In light of the judicial recognition that "bright-line rules permitting or exempting disclosure are at odds with controlling precedent," 1 we believe that the public interest in monitoring the selection and appointment process outweighs the privacy interest of these applicants, and the balance tips in favor of disclosure of their resumes. Further, we reject the city's argument that the disputed resumes constitute correspondence with private individuals within the meaning of KRS 61.878(1)(i).
On February 21, 2011, Daily News staff reporter Andrew Robinson requested "the resumes of the 18 parties interested in being appointed to the vacant commission seat" created "when Mayor Pro Tem Joe Denning was selected Mayor following former Mayor Elaine Walker's appointment as Kentucky Secretary of State." Relying on KRS 61.878(1)(a) and (i), the City of Bowling Green denied the request by letter dated February 22, 2011. The city clerk explained:
The Board of Commissioners is still in the process of reviewing those resumes and those documents remain preliminary documents until the Board makes a final decision. 2 In addition, those persons who submitted resumes have privacy rights in keeping this information confidential, at least until a decision is made by the Board of Commissioners. 3
In supplemental correspondence directed to this office after Mr. Robinson initiated his appeal, the city maintained that the disputed resumes "constitute correspondence with private individuals that was not intended to give notice of final action by the Board of Commissioners." Additionally, the city asserted that a commissioner is considered a part-time city employee and that the weight of legal authority supports "the right of privacy of unsuccessful candidates for public employment. " The city distinguished between "persons publicly filing to run for elected office" and the "appointment process authorized by state statutes" at issue in this appeal. Continuing, the city observed:
It was the duty and responsibility of the Board of Commissioners (and if not the Board, the Governor) to fill that vacant position. The Board chose to do so by soliciting applications for the position. Seventeen persons did not get that appointment. Those seventeen persons have a right of privacy to the fact that they submitted resumes, but were not chosen for the appointment . . . . This was not a situation where a person was required to publicly file for office. Instead, the Board of Commissioners asked persons to privately submit resumes to it for review and consideration. The Board of Commissioners was under no duty to adopt this process. Those persons who submitted resumes did so with an expectation of privacy. The public, including the applicants' current employer, coworkers and others, have no right to view the unsuccessful applicants' resumes and to allow such a review may work to prevent others from submitting resumes should this process be followed again.
While we continue to adhere to the view that, in general, the privacy interests of applicants for public employment in records relating to their application outweigh the public interest in disclosure, we believe that the public interest in monitoring the selection process for a vacant elective office is superior to the applicants' privacy interest. Accordingly, the latter interest must yield and the records must be disclosed.
In a recent open records decision, the Attorney General refused to depart from the line of authorities, upon which the city relies, recognizing that the privacy interests of applicants for school superintendent outweigh the public's interest in disclosure unless the applicants have made their identities known. See 10-ORD-196; compare 03-ORD-084 (application letter submitted by a state representative in his public, but ultimately unsuccessful, bid to become president of Eastern Kentucky University must be disclosed since "protected privacy interests upon which 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"). Notwithstanding allegations that "political ties" had historically influenced the superintendent selection process in the school district, and evidence of the district's unfavorable standing in the state's rankings, we attached greater weight to the unsuccessful applicants' privacy interests "in avoiding disruption in their current employment and maintaining their reputations" than the public interest in the hiring process.
Nevertheless, we acknowledged that Kentucky's courts had recently declared that "bright-line rules permitting or exempting disclosure are at odds with controlling precedent." Cape Publications v. City of Louisville, at 14. In City of Louisville, the Court of Appeals focused on the "case-by-case analysis required by the outstanding law on the Open Records Act, " and, in particular, KRS 61.878(1)(a), in determining that the public's interest in the performance evaluations of two parks department employees, one who committed a criminal act made possible by his position within the agency, and the other, that employee's supervisor, outweighed the employees' privacy interest in the work-related content of their evaluations. The court noted that the Attorney General had long recognized the superior privacy interests of public employees in their evaluations but rejected this position in favor of a "case-by-case analysis." We are obligated to do the same in this appeal and find that a case specific analysis of the competing interests yields a result that is contrary to the result in the open records decision upon which the city relies.
Resolution of the issue presented in this appeal turns on the fact that the public interest in the identities of persons seeking appointment to elective office is often greater than that of the public interest in the identities of persons seeking public employment. 4 Although public employees serve the public, they do not represent the public in the manner of an elected official, and the public's interest in them is, in general, reduced. Nor do they answer to the public at the voting booth on election day and undergo routine public scrutiny. Mayor Pro Tem (now Mayor) Joe Denning, on the other hand, was elected to represent the public and to serve as the public's voice on the Commission. Despite the fact that he or she was not popularly elected, so, too, is Mayor Denning's successor on the Commission. The fact that the city characterizes its elected officials as "part-time employees" does not alter these factual dissimilarities.
Persons submitting resumes to the Board of Commissioners for consideration to fill Mayor Denning's vacant seat therefore forfeited a greater measure of their personal privacy when they "threw their hats in the ring." Their privacy interests in avoiding disruption in their current employment were virtually nonexistent given the fact that they could maintain their current employment in addition to their office. In other words they were unlikely to suffer reputational damage, or be penalized by their current employer, for seeking appointment to elective office. In the simplest terms, the selection process for a vacant elective office did not require the secrecy of the hiring process. Assurances of confidentiality extended by the Board of Commissioners to the applicants were therefore legally unsupportable and in no way dispositive. The applicants' reduced expectation of privacy must yield to the heightened public interest in disclosure. The city's argument to the contrary is unpersuasive.
So, too, is the city's argument that resumes constitute correspondence with a private individual within the meaning of KRS 61.878(1)(i). Our analysis proceeds from a line of decisions issued by this office recognizing that KRS 61.878(1)(i) does not extend protection to "all writings from individuals to a governmental agency," but excludes writings upon which "an agency is expected to rely . . . to take some action." 07-ORD-181, p. 4, citing OAG 90-142 and 00-ORD-168. It is "generally reserved for that narrow category of public records that reflects letters exchanged by private citizens and public agencies or officials under conditions in which the candor of the correspondents depends on assurances of confidentiality. " Id. Pursuant to KRS 61.871, requiring strict construction of the statutory exceptions, 5 we believe that a resume is not correspondence because it is not a letter. If a resume was deemed to be a letter, the resumes at issue in this appeal were submitted to the Commission with the expectation that they would be relied upon to take action, namely, the appointment of a successor to Mayor Denning. They were not submitted under conditions in which the candor of the correspondents depended on proper assurances of confidentiality. A resume is a record reflecting the education, work history, and pertinent qualifications of the applicant, and unless one questions the accuracy of the record, candor plays no role in the submission. KRS 61.878(1)(i) does not, therefore, support nondisclosure of the requested records. 6
We do not question the City of Bowling Green's good faith in relying on KRS 61.878(1)(a) and (i) and the authorities supporting nondisclosure of application materials submitted by persons seeking public employment. We believe, however, that persons seeking appointment to elective office stand in factually different shoes than those seeking public employment. In addition, we reject the city's argument that a resume enjoys protection as "correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency," within the meaning of KRS 61.878(1)(i). Applying the competing interests analysis established by Kentucky's courts for determining the propriety of agency reliance on KRS 61.878(1)(a), we conclude that the public's interest in disclosure of the disputed resumes for the purpose of monitoring the selection process employed by the Board of Commissioners outweighs the privacy interest of persons who submitted the resumes to be considered for the vacant elective office. The City of Bowling Green therefore violated the Open Records Act in withholding the resumes.
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.
Distributed to:
Andrew RobinsonKatie SchallerH. Eugene Harmon
Footnotes
Footnotes
1 Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006).
2 During the pendency of this appeal, an applicant was chosen for the vacant seat. This fact does not alter our analysis inasmuch as we find no support for the city's claim that the resumes are preliminary correspondence within the meaning of KRS 61.878(1)(i).
3 One applicant publicly announced her candidacy for the vacant seat. Because we conclude that the identities, and resumes, of all applicants must be disclosed, this fact mitigates neither for nor against access to the disputed records.
4 Clearly, this is not always the case. For example, selection of a school superintendent or a university president generates keen public interest. The competing privacy interests of such applicants are, nevertheless, weightier insofar as they stand to compromise themselves reputationally and in their current employment by disclosure of the fact that they sought employment elsewhere and were not selected.
5 KRS 61.871 thus provides:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others.
6 The city may, of course, redact purely personal information, such as marital status or personal interests, under authority of KRS 61.878(1)(a) and KRS 61.878(4).