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 Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in its disposition of Michelle Vance's April 8, 2015, request to inspect an application for an administrator position. For the reasons that follow, we find that EKCC improperly relied upon KRS 61.878(1)(a) in this situation.
Ms. Vance, an employee at EKCC, submitted her April 8 request 1 to the EKCC Records Department as follows:
I would like to file open records for Donal Howard's application that he submitted for the January 28, 2015 and March 17, 2015 interviews for Corrections [U]nit Administrator I position at EKCC.
On April 10, 2015, Betty Lindon, Human Resource Administrator Institutional, provided Mr. Howard's March application but denied inspection of his January application, responding in pertinent part:
Your request for the application he submitted for the January 28, 2015 interview is denied, pursuant to KRS 61.878(1)(a). There was no successful applicant for the position as a result of the interviews conducted on January 28, 2015. Application materials submitted by unsuccessful applicants are exempt from disclosure, as these records contain information of a personal nature where the public disclosure would constitute an unwarranted invasion of personal privacy.
Ms. Vance appealed to the Attorney General on April 13, 2015, stating as follows:
I filed open records on a state employee information [ sic ] due to him being disqualified for a position and then the position was reopened with state government and he received the position. He was disqualified for the first position due to not listing DUI information on his application but when I filed open records for the application I was denied. The agency gave me his second application but would not give me the application for the first interview. ?
?
I plan to file a grievance on this position due to the position was pre-selected with him in mind. I have more Corrections state time in and more experience in the field that we both interviewed for.
On April 30, 2015, Catherine M. Stevens, Staff Attorney, Justice and Public Safety Cabinet, responded to the appeal on behalf of EKCC:
This open records request concerns a job vacancy at [EKCC] for the position of Corrections Unit Administrator I ("CUA"). Ms. Vance was an unsuccessful applicant for the position. Applicants for the position of CUA were initially interviewed on January 28, 2015. There was no successful applicant as the result of the original posting of this position or the January 28, 2015 interviews. The position of CUA was subsequently re-posted and applicants for the re-posted position were interviewed on March 17, 2015. As the result of the re-posting of the position and the interviews conducted on March 17, 2015, Mr. Donal Howard was the successful applicant for the position.
Ms. Stevens points out that this office, on many previous occasions, has upheld denials of third-party requests for application materials of unsuccessful applicants for public employment.
KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny," while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. at 327-28.
In 02-ORD-221, this office set forth the reasons why applications and resumes of unsuccessful applications for public employment had consistently been regarded as protected from disclosure under KRS 61.878(1)(a):
These opinions were premised on the notion that disclosure might embarrass or harm applicants who fail to get a job . Present employers, coworkers and prospective employers, should the applicants seek new work, would learn that others were deemed better qualified for a competitive appointment. The simple fact that the unsuccessful applicant wished to leave his present appointment might prove embarrassing. Ultimately, the hiring and appointment process might be compromised by encouraging "lesser qualified but thicker skinned persons [to apply]." Arizona Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 806 P.2d 348, 352 (1991).
(Emphasis added.) In this case, however, none of the cited privacy interests apply, because Mr. Howard was ultimately the successful applicant. He did not fail to get the job, and no applicant was deemed better qualified. "Recognizing that the identities of applicants selected for positions are known, and that disclosure that they wished to leave their former employment cannot embarrass them since this fact is also known, ? the release of their applications 'would cause but a slight infringement of their privacy. '" 97-ORD-72 (quoting
Core v. United States Postal Service, 730 F.2d 946, 948 (4th Cir. 1984)). 2 Therefore, since Mr. Howard is now the successful applicant for the CUA position, the privacy interest in his initial application is negligible.
Weighing against this slight privacy interest is a countervailing public interest "in the competence of the applicants public agencies hire and the agencies' adherence to proper hiring practices." 03-ORD-084. Although this public interest "has also, in general, been characterized as nominal at best," id. , it is nevertheless sufficient to outweigh the minimal privacy interest in a successful applicant's records. See, e.g. , 97-ORD-72. Under the facts of this case, then, EKCC had no substantial basis for treating Mr. Howard's January application differently from his March application. Accordingly, EKCC improperly relied upon KRS 61.878(1)(a) to withhold the initial application.
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.
Footnotes
Footnotes
1 This was one of multiple open records requests submitted by Ms. Vance on April 8, 2015. The January application is the only record at issue in this appeal.
2 Furthermore, the record suggests that Mr. Howard was already employed at EKCC when he applied for the CUA position; the fact that he wished to leave his former position would thus have been known to his employer even if he had not been chosen for the job.