Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Eastern Kentucky University properly relied on KRS 61.878(1)(a), (i), and (j) in partially denying Lexington Herald-Leader reporter Rich Copley's June 20, 2012, request for records relating to the EKU Center for the Arts and its former director, Debra Hoskins. 1 We find that EKU's reliance on these exceptions was misplaced and that it violated the Act in partially denying Mr. Copley's request.
On June 25, 2012, EKU released a number of responsive records to Mr. Copley but denied him access to internal audits and all personnel records relating to Ms. Hoskins other than redacted Position Action Forms for the position of Executive Director of the EKU Center for the Arts. In support, EKU cited KRS 61.878(1)(a), (i), and (j) explaining:
The University is unable to produce any records in response to [these] request[s] or any specific description thereof because the disclosure of such records and information would either (a) create an unwarranted invasion of personal privacy; and/or (b) be contrary to the records' preliminary nature.
The Lexington Herald-Leader thereafter filed this appeal asserting that the referenced exceptions do not support nondisclosure and that EKU "failed to sustain its burden of establishing that . . . internal audits conducted since January of 2011 [and Ms. Hoskins' personnel records] are exempt from inspection under the Kentucky Open Records Act. "
In supplemental correspondence directed to this office, EKU stated that on June 19, 2012, it entered into an Agreement and Release with Debra Hoskins that included "a confidentiality clause in which both parties agreed that the existence of the Agreement, as well as certain other documents relating to Ms. Hoskins and her employment with the University, must remain confidential to the extent permitted by law." EKU explained that its disposition of Mr. Copley's request "was based in part upon its good faith efforts to comply with this Agreement" but indicated that it "stands ready to fully comply with the Attorney General's decision in this matter."
It is our decision that the Herald-Leader is entitled to the requested internal audits and personnel records "pertinent to [Debra Hoskins'] performance as director of the Center from February 2011 to June 2012," including evaluations, performance appraisals, letters of commendation, and letters of reprimand, as well as the June 12 termination letter and severance agreement. The overwhelming weight of legal authority supports the Herald-Leader's position that the confidentiality clause in the Agreement and Release is unenforceable and that the documents for which confidentiality is claimed do not enjoy protection under the Open Records Act. Controlling case law, along with numerous open records decisions of this office, compel disclosure of these records.
In
Central Kentucky News-Journal v. George, 306 S.W.3d 41, 46 (Ky. 2010) Kentucky's highest court rejected the argument that "a confidentiality agreement may impute, per se , a public record with a privacy claim superior to that of the public's right of access," and reaffirmed the longstanding principle that "a confidentiality clause reached by agreement of the parties . . . cannot in and of itself create an inherent right to privacy superior to and exempt from the statutory mandate for disclosure contained in the Open Records Act . . . ." Id. citing
Lexington Fayette Urban County Government v. Lexington Herald-Leader, 941 S.W.2d 469, 472-3 (Ky. 1997). This holding proceeded from the notion that the provisions of Kentucky's Open Records Act:
reflect a policy determination favoring disclosure of public records over the general policy of encouraging settlement. The people of this state, through their elected representatives, have stated in the clearest of terms that it is more important that they have access to this type of information than that it remain confidential. Thus, we hold that a public agency may not circumvent the statutory requirements by agreeing to keep the terms of a settlement agreement confidential.") quoting Anchorage School District v. Anchorage Daily News, 779 P.2d 1191, 1193 (Alaska 1989) (emphasis in original).
George at 46. The confidentiality clause in the Agreement and Release between Ms. Hoskins and EKU has no legal effect. Nevertheless, we must still address whether the Agreement and Release and related documentation, as well as internal audits and Ms. Hoskins' personnel records, are exempt from disclosure under KRS 61.878(1)(a), (i), or (j). In our view, they are not.
In both George , above, and Lexington Herald-Leader, above, the Supreme Court recognized that "in some cases there may be a legitimate concern for personal privacy which would be sufficient under the Act" to justify nondisclosure. That concern would exist if the records contained "information about which the public would have little or no legitimate interest but [which] would be likely to cause serious personal embarrassment or humiliation." George at 47 citing Lexington Herald-Leader at 472. Resolution of this question in the appeal before us turns on whether Ms. Hoskins' privacy interests outweigh the public's right to know the circumstances giving rise to her departure and whether EKU responded appropriately. Again, case law controls.
We look no further than George for the proposition that potential embarrassment arising from the disclosure of records containing substantiated or unsubstantiated allegations of a public employee's unfitness or misconduct is not sufficient under the Act to justify nondisclosure. In George , agreements settling actions by a public school employee against two school districts in which the employee alleged, inter alia , sexual harassment, were deemed nonexempt based on a superior public interest in ascertaining whether the districts were "properly . . . execut[ing] their statutory functions." George at 45 citing Board of Examiners at 328. Similarly, in
Doe I v. Conway, 357 S.W.3d 505 (Ky. App. 2010), the court recognized a superior public interest in disclosure of records relating to the Attorney General's investigation of a Transportation Cabinet employee alleged to have "misused government time, property, and funds," engaged in improprieties in the formation of government contracts, and sexually harassed "at least one government employee," notwithstanding the employee's claim that the investigative records were "clearly of a personal nature." Id. at 508. See also,
Palmer v. Driggers, 60 S.W.3d 591, (Ky. App. 2001) (public's interest in complaint alleging police officer's neglect of duty to pursue an inappropriate relationship outweighed police officer's negligible privacy interest) ;
Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006) (privacy interest of parks department employee terminated for theft of donated sports apparel, as well as the privacy interest of his supervisor, in their performance evaluations deemed inferior to public's interest in disclosure) .
Although the matter is still before the courts, in
Kentucky Community Technical College System v. Paxton Media Group, 2012 WL 376 2045 (Ky. App.), 2 the Kentucky Court of Appeals recognized that disclosure of records relating to the removal of a community college president "sheds light on the operation of a public agency. " Id. at 3. The court explained:
Paula Gatenveld was the president of a local college and was removed from that position without explanation. A fundamental issue in her removal was an intraorganizational dispute involving Gastenveld, Beardmore, and Fiorella. Several community leaders and organizations were involved either directly or indirectly with her removal or protest of her removal. At least some of those leaders and organizations were aware of the fact that Gastenveld's removal was related to the performance evaluations at issue. Eventually, Gastenveld filed a lawsuit challenging her removal. That lawsuit names Beardmore and Fiorella as defendants and focuses on the performance evaluations.
It is a longstanding principal that the public has a right to be informed as to matters relating to the operation of government. City of St. Matthews v. Voice of St. Matthews, Inc., 519 S.W.2d 811, 815 (Ky. 1974). Certainly the basis on which the president of a public university is removed from her position is a matter relating to the operation of government. In this case, there is an issue of transparency regarding the dismissal of Paula Gastenveld from her position as president of OCTC. The circumstances surrounding the situation suggest that the performance evaluations at issue are directly related to Gastenveld's removal. Thus, it is likely that "the public interest in the details of the operation of a public agency could be advanced by the disclosure of nonpersonal information contained in the evaluation." Cape Publications at 14. (Emphasis added.)
Id. Here, as in KCTCS v. Paxton Media Group , the disputed records "are directly related" to Ms. Hoskins' departure from EKU and "it is likely that the public interest in the details of the operation of a public agency could be advanced by the disclosure" of those records. Id. As the matter currently stands, "there is an issue of transparency" regarding Ms. Hoskins' departure that can only be resolved by disclosure of internal audits of the Center she directed and personnel records relating to her performance as director. KRS 61.878(1)(a) does not authorize nondisclosure of these records, and EKU's reliance on the exception to support the confidentiality clause in its Agreement and Release was misplaced.
Neither KRS 61.878(1)(i) nor (j) authorize nondisclosure of these records. EKU offers little insight into its argument that the disputed records qualify for protection under these exceptions. Palmer v. Driggers , above, is also dispositive of this issue. There, the courts determined that the resignation of a public employee facing possible discipline or dismissal preempted agency action on his or her employment status and therefore effectively constituted final agency action. Such action "by an employee before the [agency] has reached a decision . . . is a 'final action. '" Id. at 3; see also 02-ORD-231 (holding that Justice Cabinet improperly withheld records relating to retired State Police Commissioner since his "departure from KSP before KSP took action was final action" and recognizing that any other holding would enable public employees and public agencies to escape scrutiny by voluntary termination of public service). Perforce, the records to which Mr. Copley requested access formed the basis of EKU's final action and the records thereafter forfeited whatever protection as preliminary documents they might have once enjoyed. The Herald-Leader has agreed to limited redaction of the requested records for personally identifiable information relating to Ms. Hoskins such as her social security number. Consistent with the rule announced in
Hahn v. University of Louisville, 80 S.W.3d 771 (Ky. App. 2001), we believe EKU may also withhold attorney-client privileged communications as long as the privilege is "strictly construed and given no greater application than is necessary to further its objectives." R. Lawson , Kentucky Evidence Law Handbook § 5.10, p. 232 (1993). All remaining responsive records must be disclosed.
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:
Kif H. SkidmoreJudith W. Spain, J.D.
Footnotes
Footnotes
1 In a June 19, 2012, article that appeared at www.kentucky.com/2012/06/19/223, the Herald Leader reported that Ms. Hoskins received a letter of termination on June 12, but that the Center's board subsequently voted to retain her. Shortly thereafter, EKU announced Ms. Hoskins' resignation.
2 KCTCS v. Paxton Media Group , 2012-SC-000639 (motion for discretionary review filed on October 2, 2012) is a nonfinal and unpublished opinion that, pursuant to CR 76.28(4), cannot be cited or used as binding precedent in any other case in the courts. It is referenced here because it bears a factual resemblance to the facts of the appeal before us and affirms the public's superior right of access where there is an "issue of transparency" regarding a University employee's unexplained departure.