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 University of Louisville violated the Open Records Act in partially denying Professor Bruce M. Tyler's June 7, 2012, request for a copy of Professor Raphael Njoku's "promotion/ tenure record." We find that 11-ORD-039, a copy of which is attached hereto and incorporated by reference, is controlling. To the extent the University's partial denial of Professor Tyler's request was inconsistent with 11-ORD-039, the denial constituted a violation of the Open Records Act.
In its June 28, 2012, response, 1 the University provided Professor Tyler with "applicable promotion/ tenure documents" relating to Professor Njoku, but "withheld tenure/ promotion records of an evaluative nature including recommendation letters, reviews, and such." The University explained:
These records are preliminary in that they contain opinions and recommendations that do not constitute any final agency action. The setting of a faculty member's salary constitutes the final action.
Dissatisfied with the University's response, Professor Tyler initiated this appeal asserting that "[a]cademic promotion records are not different than the records of police officers or their discipline, commendation, or promotion records that come under the Kentucky State Open Records law."
By letter dated August 31, 2012, the University acknowledged that it failed to "properly cite the exceptions upon which [it] relied in denying access to the promotion/ tenure evaluative records," but noted that it "did explain that the materials withheld . . . were those of an evaluative nature that contain opinions and recommendations and did not constitute any final agency action. " Continuing, the University's records custodian observed:
The promotion and tenure process involves a series of evaluations/recommendations all of which are preliminary and none of which were incorporated into the final decision on Dr. Njoku's promotion. Among the records I did provide was the final action of the Board of Trustees represented in Dr. Njoku's promotion letter. The Board of Trustees did not incorporate the evaluative records into a written report or adopt them as the final decision. I relied on KRS 61.878(1)(i) "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency"; and (j) "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended. "
In closing, the University indicated that if Professor Tyler requested his own promotion/ tenure file his request would be assessed under different criteria, 2 but confirmed that it released "all the records applicable under the statute" from the promotion file of Dr. Njoku.
In 11-ORD-039, this office analyzed a nearly identical request submitted to the University by a professor for records relating to another professor's promotion and/or tenure file. At page 6 of that decision, we rejected the University's reliance on KRS 61.878(1)(a) and (j) to withhold non-evaluative records from the professor's promotion and tenure file consisting of:
. Correspondence notifying the professor of final University action;
. Vita;
. Annual Statement of Work Assignment;
. Summary Information Sheet;
. Publications;
. Minimum Criteria for Tenure/ Promotion and Tenure Triptych Information;
. Log Sheet for Promotion and Tenure/ Binder Requirements for Promotion, Tenure, and Periodic Career Review;
. List of Internal and External Evaluators;
. Ballot summaries (containing no identifiers).
We affirmed the University's reliance on KRS 61.878(1)(a) and (j) to withhold evaluative records consisting of:
. Peer Evaluation Forms;
. Letters of evaluation submitted by internal and external evaluators;
. The professor's personal statement; and
. Summative Teaching Evaluation Forms
We emphasized that our analysis was "grounded in the laws governing access to public records under the Open Records Act and not in the principles of academia." 11-ORD-039, p. 7. Our records do not indicate that the University appealed 11-ORD-039 to the circuit court pursuant to KRS 61.880(5)(a) . It is the law in that case and represents the unchallenged position of the Attorney General.
Consistent with 11-ORD-039, the University is obligated to disclose to Professor Tyler any of the nonevaluative records identified in the first bulleted text if it has not already done so. Contrary to Professor Tyler's belief that the records are analogous to police officer "discipline, commendation, or promotion records that come under the Kentucky State Open Records law," the University is not obligated to disclose to Professor Tyler evaluative records from Professor Njoku's file such as those identified in the second bulleted text. While it is true that records reflecting final agency action in cases of public employee discipline, commendation, or promotion are subject to inspection under the Open Records Law, only those evaluative records containing opinion and recommendation that are adopted as the basis of that final action forfeit their preliminary character and must be disclosed. Opinions of the courts and this office dating back to 1982 establish only a limited right of access to "preliminary drafts, notes [and] correspondence with private individuals" and "[p]reliminary memoranda in which opinions are expressed or policies formulated and recommended, " as reflected in the authorities cited at page 6 of 11-ORD-039. The University should be guided by these observations in re-evaluating Professor Tyler's request and its response.
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:
Dr. Bruce M. TylerSherri F. PawsonAngela D. Koshewa
Footnotes
Footnotes
1 The University indicates that Professor Tyler's request, although dated June 7, arrived on June 19. Its response was, nevertheless, several days overdue and therefore violated KRS 61.880(1).
2 This is most likely a reference to KRS 61.878(3) which provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, lay-offs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency