Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Oldham County Public School District ("district") properly relied on KRS 61.878(1)(a) and (i) in denying Dick Richards' April 27, 2012, request to inspect "all comments submitted to the district following the superintendent candidate public forum . . . conducted on April 18." Based on the weight of legal authority, we find that the district's reliance on KRS 61.878(1)(a) and (i) was misplaced. Mr. Richards offers no objection to redaction of information that directly or indirectly identifies the persons submitting the comments, and we are therefore spared debate on this question.
The district denied Mr. Richards' request on May 1, 2012, asserting that disclosure of the "unedited, personal comments" would constitute "an invasion of [the commenters' privacy] ." In support, the district noted that commenters were given no notice that their comments might be made public and that "confidentiality was requested in some cases." 1 Further, the district noted, "[i]nterested individuals may have been dissuaded from commenting or may have moderated their comments had they been writing for a public audience rather than a private one." In support of its reliance on KRS 61.878(1)(i), the district maintained that the requested comments constitute "correspondence with private individuals other than correspondence intended to give notice of a final action of a public agency. " The district expressed appreciation for the commenters and their comments but asserted that they had no "formal role in the selection process."
Shortly after he received the district's response, Mr. Richards initiated this appeal. He explained that as the candidate forum concluded a district representative announced that public input was welcomed and could be communicated through the district's website. "At no point," Mr. Richards emphasized, "did anyone say anything about that input being considered confidential. " Continuing, he observed:
The public comment page was available on the district's website for several days. I personally visited the page myself and did not see anything on the page saying the comments would be kept confidential.
It was Mr. Richards' position that, given the absence of any assurances of confidentiality, "[i]t is hard to see how anyone providing public comments on a public website about a public forum could possibly have any reasonable basis for expecting confidentiality. " Mr. Richards also disputed the district's characterization of the comments as "correspondence, " asserting that they were "submissions" analogous to the "submissions" deemed nonexempt in 99-ORD-215 (holding that citizen comments concerning a proposed bypass submitted to the Transportation Cabinet were not shielded from disclosure) .
In supplemental correspondence directed to this office, the district acknowledged that at the close of the candidate forum, "attendees were advised that they could provide feedback by sending their comments to the board members through the district's website, " but explained that the board did not "explicitly seek public comment." The district emphasized that the comments were "not posted on a public page or shared with anyone other than the board members," and that "there was no indication that these private communications would be made public at any time." Elaborating on its invocation of KRS 61.878(1)(a), the district observed:
[T]he correspondence from individuals expresses their private opinions, feelings, and thoughts about the candidates . . . but [was] not limited to the writer's reaction to the candidates' performance at the forum. Many of the individuals relayed their personal experiences and interactions with one or more of the candidates or their relationship to the candidates . . . . [W]riters included personal anecdotes as well as information about their children (special needs/gifted and talented status) and themselves (status as a current teacher or principal).
Additionally, the district argued, disclosure of the comments "would unwarrantedly invade the privacy of the candidates" insofar as the unfiltered, and occasionally unflattering, comments "could be harmful to the candidates [in their current and future employment] and would add little in terms of evaluating their competence by the public."
The district disputed Mr. Richards' argument that the comments do not constitute "correspondence" for purposes of invocation of KRS 61.878(1)(i) , asserting that the term applies not only to an exchange of letters between two individuals but also to "letters written or received." The district distinguished the holding in 99-ORD-215, upon which Mr. Richards relied, noting that the holding turned, in large measure, on the agency's failure to explain how KRS 61.878(1)(i) applied to the comments withheld and to describe "how the comments were solicited or submitted . . . ." Given the "frankness and candor of the comments" in the present case, the district contended:
it is clear that the writers had an expectation of confidentiality when writing to the board members through the Board of Education's website. Unlike an electronic bulletin board, emails sent through the website are not visible to anyone but the webmaster who forwards them to the board members.
In support of its position, the district concluded that the pertinent authority was not 99-ORD-215 but was, instead OAG 90-13 and OAG 79-69, relating to voluntary surveys that were not submitted with the expectation that the agency would rely upon them in taking final action. Because these authorities have been largely superseded by recent authority, we reject the district's position relative to invocation of KRS 61.878(1)(a) and (i) and its reliance on OAG 90-13 and 79-69.
KRS 61.878(1)(i) authorizes nondisclosure of "preliminary drafts, notes, [and] correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. " In 07-ORD-181, this office assessed the propriety of the Lexington-Fayette Urban County Government's reliance on this exception to support nondisclosure of correspondence between council members and private individuals concerning a proposed historic (H-1) overlay district application. We concluded that LFUCG's reliance on KRS 61.878(1)(i) was misplaced focusing chiefly on a line of decisions recognizing that:
insofar as it extends protection to "correspondence with private individuals," [KRS 61.878(1)(i)] 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. Clearly, the exception does not extend to "all writings from individuals to a government agency . . . ."
07-ORD-181, p. 2 citing OAG 90-142, p. 6. In the latter opinion, the Attorney General determined that:
Writings from private citizens to government agencies are not considered correspondence with private citizens where an agency is expected to rely on the correspondence to take some action, such as to take disciplinary action against a licensee or enter into a government contract based on bids.
Id. A copy of 07-ORD-181 is attached hereto and incorporated by reference.
In 99-ORD-220, we applied this reasoning to applications from private entities or individuals to a governmental entity for licenses to do business. 2 We extended this reasoning to applications for the purchase of conservation easements in 01-ORD-86 and to public agency's correspondence with a private contractor on issues relating to the administration of the contract in 00-ORD-98.
Most importantly for purposes of our analysis, in 04-ORD-192 the Attorney General rejected a city's claim that a petition signed by individuals supporting the sale of city owned property was correspondence with private individuals, characterizing the petition as "a formal written document requesting a right or benefit from a group in authority upon which that group was expected to rely in taking action relative to the sale of the property." 04-ORD-192, p. 4. "[T]he signers," we noted, "affixed their signatures with the goal of 'advocating or recommending certain policy action.'" Id. We took this analysis one step further in 07-ORD-181, declaring that the correspondence in dispute was submitted to LFUCG council members "with the goal of advocating or recommending a certain course of action" relative to the application for the H-1 overlay. 07-ORD-181, p. 3. Nothing in the record on appeal, we noted, "suggest[ed] that the candor of the correspondents was dependent upon assurances of confidentiality. " Id. Nor was our conclusion altered by the fact that the council's ultimate decision in the matter was "based on the evidence presented at the hearing" since the correspondence was submitted for the purpose of advocating the correspondent's preferred course of action. Compare 08-ORD-140 (determining that correspondence from a private individual to a Louisville Metro Councilmember was excluded from public inspection as correspondence with a private individual because it did not "advocate or oppose any particular course of action" but instead expressed concerns, and posed questions, about its subject, and because it was exchanged "under conditions in which the candor of the correspondents depended on assurances of confidentiality" as reflected in repeated references to the correspondent's desire to remain anonymous).
We see little appreciable difference between the comments at issue in this appeal and the comments at issue in 07-ORD-181. The record on appeal in both is devoid of any proof that the agencies resisting disclosure gave any assurances that the proffered comments would be treated as confidential. We cannot, therefore, infer that the commenters reasonably expected that their comments would be held in confidence. As noted, only one commenter requested confidentiality for his comments and there is no indication that his request was prompted by district assurances. Regardless of whether the comments are characterized as "correspondence" or "submissions," they do not enjoy protection under KRS 61.878(1)(i) because, consistent with the cited decisions culminating in 07-ORD-181, they were submitted with the goal of advocating or recommending that the board take a particular course of action, here the selection of the superintendent candidate for whom they expressed support. Notwithstanding the fact that other factors drove the board's ultimate selection, the comments were submitted to the board with the expectation that the board would rely on them. 99-ORD-215, upon which Mr. Richards' relies, is silent as to the circumstances under which the disputed comments were submitted and the commenters' expectations in submitting them, and is therefore not dispositive. The record before us, coupled with our in camera inspection of the disputed comments, confirms that the candor of the commenters did not depend on any assurance of confidentiality and that they expected the board to rely on the comments in arriving at its final selection. The district's reliance on KRS 61.878(1)(i) was misplaced. Because the record on appeal in 07-ORD-181 confirmed the same, that open records decision is dispositive.
The district's reliance on KRS 61.878(1)(a), authorizing nondisclosure of "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, " was also misplaced. As noted, we are spared debate on the question of unrestricted access to the records in dispute because Mr. Richards agreed to redaction of information that directly or indirectly identifies the commenter. This includes name, email address, and personally identifiable information making the identity of the commenter easily traceable. It does not include the commenter's assessment of the qualifications of the candidates for superintendent. To begin, KRS 61.871 "declares that the basic policy of [the Open Records Act] is that free and open examination of public records 3 is in the public interest . . . even though such examination may cause inconvenience or embarrassment to public officials or others." Moreover, the Act "exhibits a general bias favoring disclosure, "
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992), and expressly assigns the burden of proof in denying a records request to the public agency. KRS 61.880(2)(c). In Board of Psychologists , above, the Supreme Court opined that the assessment of the propriety of an agency's invocation of KRS 61.878(1)(a) is based on "a comparative weighing of the antagonistic interests," id. , specifically the privacy interests implicated by disclosure and the public's interest in disclosure. The public's interest is, of course, premised on the public's right to know that its agencies are properly executing their statutory functions. Id. at 328. The public's interest here is premised on its right to know that the board properly executed its duty to appoint a superintendent, codified at KRS 160.350(1), and the comments to which Mr. Richards requested access had at least some bearing on that appointment. Any other view would render those public comments a nullity. Conversely, the privacy interests of the superintendent candidates in the public's assessment of their professional qualifications cannot be accorded great weight. The candidate selected serves as "executive officer" for, and "professional advisor" to, the board and is responsible for insuring that all laws are "carried into effect." KRS 160.370. Moreover, he/she has general supervisory power over the conduct of the schools, the course of instruction, the discipline of pupils, and the management of business affairs. Id. It is he/she who is "responsible for the hiring and dismissal of all personnel in the district." Id. He/she must therefore expect a level of public scrutiny, and even criticism, that surpasses the level of scrutiny or criticism to which other public employees are exposed. The public's assessments of the relative qualifications of the candidates do not "touch [] upon the . . . intimate and personal features of private lives," id. , but are relevant to the public's interest in how the board discharged its KRS 160.350(1) duty. The public's right to know how the commenters assessed the candidates following the April 18 candidates forum is therefore superior to the candidates' de minimus privacy interests, and Mr. Richards must be afforded access to those comments after names, email addresses, and personally identifiable information are redacted.
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:
Dick RichardsPaul UpchurchAnne Courtney Coorssen
Footnotes
Footnotes
1 Pursuant to KRS 61.880(2)(c), this office asked that the district provide us with copies of the disputed records, for in camera inspection, to facilitate our review of the question on appeal. Our review of these records confirms that only one commenter requested that his comments be kept confidential.
2 See discussion in 99-ORD-220 modifying OAG 90-142 to the extent that OAG 90-142 held that disclosure was mandatory only after final governmental action and holding that applications became open records upon submission.
3 The district does not dispute the status of the comments as public records but argues that the comments "may have been moderated" had they been written "for a public audience rather than a private one." We reject the inference that the board, in reviewing the comments, was not acting as a public agency.