Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Franklin County Fiscal Court violated the Open Records Act in the disposition of State Journal reporter Ryan Quinn's December 9, 2013, request for records that had been removed from certain employees' personnel files. For the reasons stated below, we find no violation of the Open Records Act, but believe the situation warrants referral to the Department for Libraries and Archives concerning the county's records management practices.
Mr. Quinn made an initial request to County Judge/Executive Ted Collins on September 11, 2013, for the personnel files of eight (8) county employees. When the county responded on September 16, 2013, certain documents were omitted or redacted pursuant to KRS 61.878(1)(a), and Mr. Quinn did not object to the withholding of this material.
Later, however, it was brought to Mr. Quinn's attention by one employee, Dawn McDonald, "that she had been allowed by the county judge-executive to take items out of her file between the Sept. 11 date I submitted my open records request and the Sept. 16 date of the county's response." Mr. Quinn contacted Mr. Collins, evidently by telephone, and was told that the employees "were allowed to come down and review their file, and there was [ sic ] some items that [were] non-relevant material, that, by agreement with the employee and the current administration, were allowed to be removed."
On December 9, 2013, Mr. Quinn made an open records request for "all non-exempt documents that were removed from the personnel files of [the employees] by those individuals themselves or other county staff members" during the pendency of his prior request. On December 12, 2013, Deputy County Judge/Executive Ray Kinney responded as follows:
As noted in the original response to your open records request, dated September 16, 2013, all non-excepted personnel documents for the above listed individuals were released with the following notation:
Otherwise, no other records [ sic ] exists or is in the possession of this agency.
(Emphasis omitted.) Mr. Quinn appealed to the Attorney General on December 19, 2013, stating: "I feel the county is not providing me all the documents to which I am entitled, and I feel their responses failed to follow proper procedure because they withheld documents without sufficient explanation."
In a letter dated January 17, 2014, Assistant Franklin County Attorney Rex Hunt explained:
In [the September 16] response, the County provided all documents in the County's possession, but for certain documents which are exempt pursuant to KRS 61.878(1)(a) , and employee evaluation documents ? The County otherwise affirmatively stated that no other documents were in the County's possession.
As a result, Mr. Quinn was provided requested personnel file documents of individuals listed in his original request. He then sought additional documents which had been removed by the employees who were given access to their files prior to the response. The subsequent requests were for documents which the county did not possess.
These limited documents were protected under KRS 61.878(1)(a), as disclosure would have constituted a clearly unwarranted invasion of personal privacy. The documents were determined to be extraneous to the file, and it is counsel's understanding that they were limited: an invitation to attend an event in one case, and a stick it note in another that contained a personal comment regarding that employee.
In both cases the employees were granted access to see their files and those documents were removed, without the advice of counsel, as it was determined by the County and Employee that these were not appropriate for a personnel file.
Unfortunately, those items were not put in and retained in a separate file, but were removed by agreement of the County and the employee. Those documents do not exist and at the time Mr. Quinn made his additional requests, they could not be provided. However the nature and content of the before noted documents can be and were verified by the employees in question.
Mr. Hunt then reiterates his position that the removed documents would have been exempt under the privacy exception in KRS 61.878(1)(a). We cannot adequately consider an argument under KRS 61.878(1)(a), however, as privacy claims are highly fact-dependent and the records no longer exist for us to examine pursuant to KRS 61.880(2)(c).
We recognize that a public agency cannot afford a requester access to a record that it does not have or that does not exist, 99-ORD-98, and that the agency discharges its substantive duty under the Open Records Act by affirmatively so stating. 99-ORD-150. It is also clear, however, that "destruction of a record before [a] records access dispute has been conclusively resolved is inconsistent with the principles of proper records management." 08-ORD-270. The removal of records from the employees' personnel files, to be either destroyed or taken outside the agency's possession, while an open records request for those files was pending, represents improper management of records. The County essentially acknowledges this to be the case.
We agree in principle that the types of documents described probably should not have been in the employees' personnel files to begin with. Nevertheless, once a request is made for those files, the contents of the files must be dealt with as they existed when the request was received. The County, in September, could have asserted the privacy exception with regard to those documents, and possibly have prevailed. The employees could also have been given an opportunity to file an action similar to Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575 (Ky. 1994), to protect their privacy interests, and might likewise have prevailed. Altering the files while the request was pending, however, was not a correct approach. Accordingly, we refer this matter to the Department for Libraries and Archives for such additional inquiry as that agency may deem warranted.
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:
Mr. Ryan QuinnHon. Ted CollinsRick E. Sparks, Esq.