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 Personnel Cabinet violated the Open Records Act in denying Laura Hatfield's August 16, 2012, request for Department of Community Based Services employee Eloise Bailey's personnel file, including her most recent application, most recent personnel action notification (PAN), PAN action list, and disciplinary action. We find that the Cabinet violated the Act in denying the request inasmuch as Ms. Bailey's privacy interest in the disclosure of records documenting her qualifications for employment with DCBS and the performance of her public duties is outweighed by the public's right to know whether "its agencies . . . properly execute their statutory functions . . . [and] the public servants are indeed serving the public . . . ." 1 Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992).
On August 21, 2012, the Cabinet notified Ms. Hatfield that her request would be honored upon receipt of copying and postage costs. Two days later, the Cabinet reversed its position, advising Ms. Hatfield that Ms. Bailey "has the right to consider her personal privacy interests and intervene in the disclosure of these records pursuant to Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575 (Ky. 1994)." The Cabinet indicated that:
Ms. Bailey has requested that the Personnel Cabinet NOT release the documents you have requested. Ms. Bailey has proper standing to request the nondisclosure of these records and Ms. Bailey has the right to assert the "personal privacy exclusion" under KRS 61.878(1). Therefore, your request is hereby denied.
Shortly thereafter, Ms. Hatfield initiated this appeal, acknowledging that the Cabinet could properly withhold information of a purely personal nature, but otherwise asserting her right to inspect records relating to Ms. Bailey's qualifications for public employment and the performance of her public duties.
In supplemental correspondence directed to this office, the Personnel Cabinet elaborated on its position:
The Cabinet is responsible for maintaining the official personnel file of all state employees. Prior to the release of "all records" relating to Ms. Bailey, the Cabinet advised Ms. Bailey of the request. According to the clear language of Beckham , Ms. Bailey has standing to request the nondisclosure of these records. As an affected party, she has the right to assert the "personal privacy exclusion" under KRS 61.878(1). Id. at 579.
In addition, the Cabinet has the right to assert this exclusion on an individual's behalf upon proper notification. See Beckham at 578. While the Beckham case addresses the standing of the affected individuals who file a legal suit in the Circuit Court to enjoin the release of the documents, the legal analysis in this situation is the same. Ms. Bailey has a personal stake in the request, she could file a separate lawsuit to seek the appropriate remedy, and therefore can properly intervene in the requested disclosure at this stage as well.
Continuing, the Cabinet observed:
While a typical request of a personnel file with appropriate redactions may not immediately constitute an "unwarranted invasion of personal privacy, " there appears to be extensive, complex underlying facts. The Cabinet is not in a position to make such determination regarding a disclosure which could potentially violate KRS 61.878(1), once the subject of the request has properly intervened.
Citing Gregory Valentine v. Personnel Cabinet, 322 S.W.3d 505 (Ky. App. 2010), the Cabinet argued that Ms. Hatfield's request "appears to serve no valid public interest and denial is appropriate." Given the fact that the applicable analysis under KRS 61.878(1)(a) "is situational and can only be determined in a specific context," the Cabinet maintained that it "should not be responsible or potentially liable for" making this determination. Clearly, however, the Cabinet made this determination by denying Ms. Hatfield's request. The Open Records Act does not support this denial.
To begin, Beckham addresses those cases in which the agency to which the request is submitted, and the public employee whose personnel records are the subject of the request, are adverse to each other on the issue of the public's right of access to the records. In such cases, the Kentucky Supreme Court recognized, the employee "affected by the decision of a public agency to release records pursuant to the Kentucky Open Records Act . . . has standing to contest the agency decision in court . . . ." Beckham at 575. Beckham thus recognizes that the Open Records Act "grant[s] a litigation remedy to enforce the exclusions" to public employees seeking to prevent agency disclosure of their personnel records, and that those employees who " commence[] litigation prior to release of the information sought, [are] entitled to be heard on their exclusion claims and entitled to appellate review of the merits in the Court of Appeals ," Id. at 578 (emphasis added). Beckham does not invest public employees with the right to block agency disclosure of their personnel records by simply requesting nondisclosure of those records. 2
Accordingly, we analyze the Cabinet's denial of Ms. Hatfield's request under the standard announced in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co. , above, and adopted in a series of cases culminating in Valentine v. Personnel Cabinet , above. At page 508 of the latter opinion, the court initially determined that the personnel records of a prosecuting attorney, which were the subject of a request submitted by the inmate she prosecuted, contained information of a personal nature in which the prosecutor had a privacy interest. Referencing Board of Examiners , the court observed:
In weighing the antagonistic interests of the public's right to know versus the privacy interest, we must bear in mind that, "The public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions."
Valentine at 508, citing Kentucky Board of Examiners at 328.
Unable to identify the inmate's open records related interest in monitoring the performance of the public duties of the Office of the Commonwealth's Attorney of sufficient importance to overcome the prosecutor's privacy interest in her personnel records, the court opined:
[T]he information sought by Valentine serves no valid public interest. When balanced against the invasion of privacy sought by Valentine's request to obtain the personnel records of his prosecuting attorney, the balance must tip in favor of privacy. Moreover, we are unaware, nor has Valentine enlightened us, how such a request would advance the public's interest in assuring that the agency in question was properly performing its function. As such, we agree with the court that releasing any of the information requested would amount to a clearly unwarranted invasion of personal privacy under the exclusion in KRS 61.878(1)(a).
Id.
No doubt Ms. Bailey has a privacy interest in her personnel records. Her privacy interest in information that has no bearing on her qualifications for employment with the Department of Community Based Services and the performance of her duties as a public employee, such as the information identified at note one, above, is substantial indeed. Her privacy interest in records bearing on her qualifications for public service and the performance of her public duties is less substantial. She is identified on Kentucky's Open Door Portal 3 as a social services worker in whose care the welfare of Kentucky's dependent, neglected, and abused citizenry has been placed. The public's interest in ensuring that she is fully qualified and that she has properly discharged her duties, as well as the public's interest in ensuring that DCBS confirmed those qualifications at the time she was hired and has, since that time, properly monitored her job performance, is paramount. Accord, Palmer v. Driggers, 60 S.W.3d 591, 596 (Ky. App. 2001) (records relating to police officer, "sworn to protect the public" involve "a matter of unique public interest" ); Doe v. Conway, 357 S.W.3d 505, 509 (Ky. App. 2010) ("the public's interest in ensuring that the government is carrying out its functions," as documented in records relating to former executive branch agency employee, "is strong"); see also Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006); Beckham v. Board of Education , above. In Doe , the court expressly rejected the implication "that the public should not be given the opportunity to weigh this information for itself" as inimical to "the purpose of the Act which is to ensure accountability. " Doe at 508.
Valentine represents the single exception to the rule of public employee accountability through records access. It does not address, and therefore cannot be said to reverse, thirty-eight years of open records analysis. Therefore, Valentine cannot be read "to violate a settled doctrine of law, adopted from motives of great wisdom and sound policy, and matured by time and experience." Thompson v. Patton, 5 Litt. 74, 15 Ky. 74 (Ky. 1824), cited in 12-OMD-179, p. 4. It is, in our view, limited to a narrow range of factual situations. While we do not discount the possibility that a similarly compelling privacy interest might be articulated on behalf of a public agency employee which would outweigh the public's interest in monitoring the employee's, and his or her employer's, discharge of their public duties, the Personnel Cabinet does not articulate a compelling privacy interest on Ms. Bailey's behalf that is superior to the public's right to know, and her preference that the records not be disclosed can, on these facts, be accorded little weight.
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:
Laura HatfieldDinah T. Bevington
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