Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Thomas M. Smith Jr. appeals the Cabinet for Health and Family Services' denial of his June 30, 2014 request for records relating to the position of Program Investigative Officer I for which he interviewed on May 5, 2014. Mr. Smith requested access to:
1. Screening criteria for the position of Program Investigative Officer I[;]
2. Rating/ background assessment for the position of Program Investigative Officer I[;]
3. Any additional requirements for the position of Program Investigative Officer I[;]
4. Order of priority in the screening/ selection process for the position of Program Investigative Officer I[; and]
5. Final determination criteria for the position of Program Investigative Officer I[.]
The Cabinet denied Mr. Smith's request in a timely written response advising him that the requested records "are considered preliminary and not subject to disclosure pursuant to KRS 61.878(1)(i)." In addition, the Cabinet stated that the records "may also be considered 'examination materials' and not subject to disclosure pursuant to KRS 18A.020(4)" because they "are used to evaluate an applicant's qualifications for the position and may be used again in future hiring process [sic]." Release of the records, the Cabinet maintained, "would give an unfair advantage to applicants in the future."
Responding to Mr. Smith's appeal, the Cabinet cited 04-ORD-045 and 02-ORD-168 for the proposition that the term "examination" has "a broader meaning which encompasses the subjective elements of the promotional examination and records relating thereto . . ." and not just an objective assessment of knowledge and skills. The Cabinet characterized all of the records Mr. Smith requested (screening criteria, rating/ background assessment, any additional requirements, order of priority in the screening selection process, and final determination criteria) as "examination materials" as that term was construed in 04-ORD-045 and 02-ORD-168. "Just as obtaining the examination questions would give an unfair advantage in future interviews, " the Cabinet argued, "obtaining the subject documents would give Mr. Smith an unfair advantage concerning future appointments or promotions concerning the Program Investigative Officer I position."
The Cabinet raised a third argument on appeal. Citing KRS 61.878(1)(a), the Cabinet asserted that the requested records were "of an evaluative nature" and "a matter of opinion . . . that does not represent any action on the part of the agency. KRS 61.878(1)(h) and (i) [sic]." 1 It was the Cabinet's position that the disputed records "are all preliminary material used in the initial phase of evaluation to make a final determination or action selecting which applicant is most qualified for the Program Investigative Officer I position. " Because the authorities cited by the Cabinet are distinguishable, we do not find these arguments persuasive.
On September 12, the Attorney General requested additional documentation from the Cabinet for substantiation, including the records responsive to Mr. Smith's request, under authority of KRS 61.880(2)(c). The Cabinet responded by providing "screening documents" consisting of multiple "Pre-Screening Criteria Worksheets" and "Screening Criteria Worksheets. " The Cabinet offered no explanation for its failure, or inability, to produce rating/ background assessments, additional requirements, order of priority in the screening/ selection process, or final determination criteria for the position. Nor did the Cabinet specifically respond to our request that it substantiate its position by explaining how the records were "developed or obtained." The Cabinet explained, generally, that the screening materials are developed for each position to be filled and differ each time. The materials, the Cabinet noted, may even differ for the same classification if different job tasks are assigned to that classification. Emphasizing that "the criteria for the matter at hand applies only to this particular Program Investigative Officer I position," the Cabinet concluded that the screening materials "represent the first stage of determining or evaluating which individual would be qualified for the position offered. The interview team must go through each application to see what criteria is met for that person to reach the interview stage of the hiring process."
KRS 18A.020(4) and KRS 61.878(3) provide state employees with an enhanced right of access to records relating to them. 2 KRS 61.878(3) states that none of the exceptions to public inspection codified at KRS 61.878(1)(a) through (n) "shall be construed to deny, abridge, or impede the right of a public agency employee . . . to inspect and to copy any record including preliminary and other supporting documentation that relates to him." However, KRS 61.878(3) prohibits public employee access to "any examination," and KRS 18A.020(4) prohibits state employee access to "any examination materials." In 02-ORD-168, on which the Cabinet relies, the Attorney General analyzed the meaning of the term "examination" in the context of KRS 61.878(3). We determined that a promotional examination, used on a recurring basis, and consisting of situational, tactical, and community "policing" exercises presented to the applicant along with possible answers to which point values were assigned, qualified for exclusion from inspection. 3 At page 9 of the decision we reasoned that although "an examination is commonly understood to involve an objective assessment of knowledge and skill, [dictionary definitions of the term] suggest a broader meaning which encompasses the subjective elements of the promotional examination and records relating thereto . . . ." The Cabinet also relies on 04-ORD-045 in which we affirmed its reliance on KRS 61.878(1)(i) and KRS 18A.020(4) in denying a requester access to interview questions and answer sheets used in the promotional process. Our decision was based, in part, on the Cabinet's assertion that the records "are used to evaluate an applicant's qualifications for the position and may be used again in future interviews" giving "an unfair advantage to applicants in future interviews. " 04-ORD-045, p. 2. The records at issue in those open records decisions are distinguishable from the records at issue in this appeal.
Although we cannot disclose their content, the pre-screening and screening criteria worksheets at issue in this appeal identify job classification, minimum education and experience, and the applicants' names. They also contain a grid on which a series of additional requirements and experience based criteria appear. In each case, an "X" is placed under the applicants' name if he or she meets the requirement or has the experience. The "X's" are added under the applicant's name for his or her "Total Number Met." They do not constitute an examination, nor are they evaluative in nature. They are instead factors used in pre-qualifying or disqualifying applicants for subsequent consideration. They cannot be fraudulently manipulated or exploited by an applicant to gain an advantage in the same way that an applicant who obtains examination questions in advance might gain an advantage. Moreover, the Cabinet emphasizes that the criteria are "developed for each position to be filled and will differ each time" and, thus, "appl[y] only to the particular Program Investigative Officer I position." Even if they could somehow be used by an applicant to gain an unfair advantage in applying for future positions, an argument for which no proof is offered, the criteria "will differ each time" and therefore afford applicants no material advantage. The applicants meet or do not meet the requirements and have or do not have the experience for the position sought. Simply put, disclosure of the prescreening and screening worksheets does not trigger legitimate concerns under KRS 61.878(1)(i) or KRS 18.020(4), or compromise the hiring process, because they are neither an "examination" nor "examination materials."
Nor do the prescreening and screening worksheets qualify for exclusion under KRS 61.878(1)(i), authorizing nondisclosure of "[p]reliminary drafts, notes, [and] correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. " The prescreening and screening criteria worksheets are not "correspondence with a private individual," an exception "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 participants depends on assurances of confidentiality." 00-ORD-168, p 2. Nor are they "drafts." They do not represent "a tentative version, sketch, or outline of a formal and final written product." 97-ORD-183, p. 4. Finally, they are not "notes." The worksheets were not "created as an aid to memory or as the basis for a fuller statement." 97-ORD-183, p. 4. Instead, they were created for the purpose of identifying qualified applicants and eliminating unqualified applicants. Again, the records cannot be properly analogized to the examiner's comments, assessments, and scores deemed exempt under KRS 61.878(1)(i) in 04-ORD-045.
The Cabinet belatedly invoked KRS 61.878(1)(a) to support denial of access to "matters of opinion." Although the worksheets do not contain opinion, they identify multiple applicants for the position by name. Obviously, only one individual was selected for the position sought. Absent proof of a heightened public interest in the hiring process, unsuccessful applicants for public employment or promotion are said to enjoy a privacy interest in records identifying them that is superior to the public's interest in disclosure. 4 01-ORD-88. The Cabinet may therefore redact the names of all prescreened and screened applicants with the exception of the successful applicant under KRS 61.878(1)(a). Access to the name of the successful applicant "promotes the public's interest in assessing the competence of people the agency employs and monitoring its adherence to procedures governing hiring. " Id. citing
Core v. United States Postal Service, 730 F.2d. 946 (4th Cir. 1984).
We remain concerned that in responding to our KRS 61.880(2)(c) request for the records in dispute the Cabinet produced only two sets of records, namely prescreening and screening criteria, satisfying only the first of Mr. Smith's five part request. The record on appeal contains no indication that the rating/ background assessment, additional requirements, order of priority in the screening/ selection process, or final determination criteria that Mr. Smith also requested, and to which we requested access under our statutory authority, do not exist. Given this indirect admission that the records do exist, we believe it is incumbent on the Cabinet to provide them to Mr. Smith, or, if they do not exist, to provide Mr. Smith with "a written explanation for their nonexistence."
Eplion v. Burchett, 354 S.W.3d 598,604 (Ky. App. 2011); accord 12-ORD-171. Its failure to do so, to date, constitutes a continuing violation of the Open Records Act.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 The open records decision from which this quotation is extracted predates the 1994 amendments to the Open Records Act in which KRS 61.878(1)(h) and (i) were recodified as KRS 61.878(1)(i) and (j).
2 KRS 61.878(3) largely mirrors KRS 18A.020(4) but has broader application, extending to all public agency employees and not just those employees governed by Chapter 18A of the Kentucky Revised Statutes. Mr. Smith enjoys an enhanced right of access to records relating to him under both statutes. The Cabinet did not refer to KRS 61.878(3) in its responses.
3 In 02-ORD-168, the agency provided the following support for its position:
The paperwork and tapes related to Sgt. Owen's performance, score sheets, notes made by assessors, materials demonstrating levels of acceptable performance, materials used by those who design the scenarios presented on the examination, checklists and guides used by assessors when evaluating the answers of the candidates (scoring keys, in effect), scenarios presented during the most recent examination, and all documents relating to the process of how the questions are drafted, presented, answered and scored reveal the substance of the examinations given by the Board, as well as the optimal answers to the questions. To require the Board to produce all the materials that were used to draft the questions presented on an exam, as well as all the possible answers to those questions, would essentially defeat the purpose of the protection specifically provided . . . for tests that may be given again. In an era of extreme sensitivity to cost containment by government, to require that these materials be turned over to Sgt. Owen would be disastrous. The Board would have to go to extreme lengths to create brand new tests on the biannual schedule used for such tests and even then the Board's tests would be compromised.
4 These decisions were premised on the notion that disclosure would embarrass or harm the unsuccessful applicants by revealing that they were deemed less well qualified or that they were pursuing employment elsewhere. See, e.g., 01-ORD-88.