Opinion
Opinion By: Jack Conway, Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Carter Traditional Elementary School violated the Open Records Act in the disposition of Rose Smith's April 14, 2015, request for access to and copies of "job titles, salaries, applications, descriptions, resumes, certifications, trainings, and any other documents of" three employees identified by name. Carter Elementary forwarded Ms. Smith's request to the Jefferson County Public Schools on or about April 16, 2015, and on April 21, 2015, JCPS notified Ms. Smith that the district was "in the process of gathering the documents [she] requested." In the same letter JCPS advised Ms. Smith that her request for "any other documents" related to the named employees did not "sufficiently describe the public records [she was] seeking." On May 6, 2015, JCPS provided Ms. Smith with records relating to each employee as identified in her request. Relying on KRS 61.878(1)(a), JCPS redacted the employees' home addresses, social security numbers, dates of birth, telephone numbers, marital status, race and gender codes, educational transcripts, and evaluations, as well as personal information relating to the references each employee submitted. Additionally, JCPS denied Ms. Smith access to the employees' criminal background checks, invoking KRS 61.878(1)(1) and KRS 17.150(4). With the exception of procedural violations noted below, we affirm.
Carter Traditional Elementary School violated KRS 61.880(1) by failing to respond in writing, and within three business days, to Ms. Smith's request. KRS 61.880(1) states:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Public schools derive their existence from the legislative grant of authority to local boards of education, found at KRS 160.290(1), to "establish schools and provide for courses and other services as [they] deem necessary for the promotion of education and the general health and welfare of pupils . . . ." They are, therefore, public agencies as defined in KRS 61.870(1)(f) 1 and subject to the requirements of the Open Records Act. Carter Elementary violated KRS 61.880(1) by failing to issue a timely written response to Ms. Smith or to notify her that, pursuant to KRS 61.872(4), 2 it was not the custodian of the requested records and provide her with the name and location of the official custodian of the requested records. To its credit, however, Carter Elementary quickly forwarded Ms. Smith's request to JCPS for final disposition.
By letter dated April 21, 2015, JCPS acknowledged receipt of Ms. Smith's request on April 16, 2015. 3 In the same letter, JCPS stated:
Please be advised that we are in the process of gathering the documents that you requested; however, your request for descriptions [sic] does not specifically describe the public records you are seeking. We have tried to contact you by phone several times, but have not been able to reach you.
Although this response partially complied with KRS 61.872(5), it did not identify "the place, time, and earliest date on which the public records [would] be available for inspection." This may have been attributable to JCPS's inability to reach Ms. Smith to confirm that all requested records had been located. We urge strict compliance with the requirements of the Act even under such extenuating circumstances.
Thirteen business days after she filed her open records request JCPS provided Ms. Smith with photocopies of thirty pages of responsive records, including certificates issued by the Education Professional Standards Board, records identifying the employees' salaries, applications for employment, resumes, and release authorizations for criminal background checks.4 From these records JCPS redacted personal information relating to the employees, and their references, including their home addresses, social security numbers, dates of birth, telephone numbers, marital status, and race and gender codes. JCPS withheld, in their entirety, educational transcripts and evaluations. With regard to these redactions and withholdings, JCPS relied on KRS 61.878(1)(a) and past open records decisions issued by the Office of the Attorney General. Additionally JCPS withheld, in their entirety, criminal background checks obtained for each of the named employees. In support, JCPS cited KRS 61.878(1)(1)5 and KRS 17.150(4), prohibiting disclosure of centralized criminal history records consisting of "information on individuals collected and compiled by the Justice and Public Safety Cabinet from criminal justice agencies and maintained in a central location," including "identifiable descriptions and notations of arrests, detentions, indictments, information, or other formal criminal charges and any disposition arising therefrom . . . ."
JCPS's partial denial of Ms. Smith's request is fully supported by the law. KRS 61.878(1)(a) authorizes the withholding of "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]" In a recent Kentucky Supreme Court opinion, the Court expressed "no hesitation in recognizing as the federal courts have that, absent a statute to the contrary, Kentucky private citizens retain a more than de minimus interest in the confidentiality of the personally identifiable information collected from them by the state."
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 85 (Ky. 2013). For this reason, and given the factual context out of which the case arose, 6 the Court rejected the practice of " blanket denials of ORA requests, i.e., the nondisclosure of an entire record or file on the grounds that some part of the record or file is exempt . . . .," 415 S.W.3d at 88 (emphasis in original). However, the court approved the agency's practice of "categorical redaction, " recognizing that "with respect to discrete types of information routinely included in the agency's records and routinely implicating similar grounds for exemption, the agency need not undertake an ad hoc analysis of the exemption's application to such information in each instance, but may apply a categorical rule." 415 S.W.3d at 89. Here, as in Kentucky New Era , the agency "has complied scrupulously with KRS 61.878(4) 7 by 'making available for examination' the requested records after having separated, in its view, the excepted private information from the nonexcepted public information." 415 S.W.3d at 88; accord 15-ORD-093; 15-ORD-095.
To the extent they are employed by a public agency, the teachers to whose records Ms. Smith requested access are not "private citizens" in the strictest sense. They are, instead, public employees in whom the public has reposed its trust and in whom the public has a legitimate interest. That interest does not extend to personal information that is unrelated to their qualifications for public employment and the discharge of their public duties. Thus, at page 7 of 03-ORD-012 this office observed:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's resume reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment . . . . In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records . . . . Letters of resignation submitted by public employees have also been characterized as open records. Conversely, this office has affirmed agency denial of access to[, inter alia ,] a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy . . . . Such matters are unrelated to the performance of public employment.
These decisions were cited with approval as recently as 2012 based on the recognition that "[d]isclosure of purely personal information does not in general, advance the public's right to monitor public agency and public employee conduct and that right must yield to [the employee's] privacy interest in such information." 12-ORD-214, note 1. Recognizing that the discrete types of information withheld are routinely included in JCPS's records and routinely implicate similar grounds for exemption, we affirm JCPS's categorical redaction of that personal information.
Applying a similar analysis, in 93-ORD-32 the Attorney General recognized the right of a public agency to withhold "information of a personal nature relating to the references [submitted by employees on job applications and related documents,] including, but not limited to, their phone numbers, addresses, and relationship to the applicant." 93-ORD-32, p. 4; compare 08-ORD-237 (distinguishing 93-ORD-32 and holding that an unsuccessful applicant for employment cannot be denied the opportunity to inspect and copy reference letters submitted by previous employers based on the broad rights of access granted by KRS 61.878(3)). 8 On this basis, we find no error in JCPS's decision to withhold personal information relating to references submitted by the named employees.
We also affirm JCPS's denial of the named employees' educational transcripts based on KRS 61.878(1)(a) as interpreted in 00-ORD-126 and reaffirmed in 14-ORD-225. In both decisions, the Attorney General recognized that "the public's right to know does not extend to such minutia as classes taken and grades received"). Finally, we affirm JCPS's denial of Ms. Smith's request for criminal background checks. In 06-ORD-136 the Attorney General affirmed the Scott County Public Schools' denial of a request for numerous school employees' background checks based on KRS 61.878(1)(k) 9 and (l), incorporating 28 U.S.C. § 534(a)(1), (a)(4), and (b) and KRS 17.150(4) , respectively, into the Open Records Act. The latter provisions erect a barrier to disclosure of centralized criminal history records that, if breached, "subject[s] to cancellation" the agreement authorizing the exchange of criminal records and information. 06-ORD-136, p. 4.
Kentucky law has undergone revision with respect to access to public employee performance evaluations. Past open records decisions approved an agency's right to withhold evaluations on the basis of KRS 61.878(1)(a). See 92-ORD-1145 and authorities cited therein. Although evaluations relate to an employee's discharge of his public duties, a matter in which the public has a strongly substantiated public interest, we recognized that the privacy interests implicated by disclosure of evaluations were superior because disclosure might "spur unhealthy comparisons, breeding discord in the workplace and result in injury and embarrassment to the employee." 92-ORD-1145, p. 4. In
Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006), Kentucky's courts modified this position, rejecting "[a] bright line rule completely permitting or completely excluding from disclosure public employees' performance." The Court of Appeals reasoned that the employee forfeits his privacy interest when he engages in misconduct 10 and that, in such instances, the "public interest in the details of the operation of a public agency could be advanced by disclosure of non-personal information contained on the evaluation." 191 S.W.3d 14. Because there is no indication in the appeal before us that the named employees engaged in misconduct, or any other suggestion of a heightened public interest in their job performance, they retain a privacy interest in their evaluations to which the public interest must yield.
For these reasons we find that although its disposition of Ms. Smith's request was procedurally flawed, JCPS, acting on behalf of Carter Traditional Elementary School, "complied scrupulously with KRS 61.878(4) by 'making available for examination' the requested records after having separated, in its view, the excepted private information from the nonexcepted public information." Kentucky New Era, 415 S.W.3d at 88. Its denial of educational transcripts, criminal background checks, and performance evaluations was consistent with established authority and did not violate 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.
Distributed to:
Rose SmithJamie WymanRosemary Miller
Footnotes
Footnotes
1 KRS 61.870(1)(f) defines the term "public agency" to include, "[e]very state or local government agency, including the policy-making board of an institution of education, created by or pursuant to state or local statute, executive order, ordinance, resolution, or other legislative act[.]"
2 KRS 61.872(4) states that "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records."
3 Ms. Smith makes no reference to this letter in her appeal.
4 As noted, and as discussed below, JCPS did not disclose the criminal background checks themselves but instead disclosed release authorizations for the background checks in order to verify that background checks were, in fact, conducted.
5 KRS 61.878(1)(l) requires public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
6 Kentucky New Era involved a request for arrest citations and police incident reports involving stalking, harassment, or terroristic threatening. The Court recognized that the privacy interest in such records "increases as the nature of the information becomes more intimate and sensitive and as the possible consequences of disclosure become more adverse." 415 S.W.3d at 88.
7 KRS 61.878(4) states: "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination."
8 KRS 61.878(3) 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.
9 KRS 61.878(1)(k) requires public agencies to withhold "All public records or information the disclosure of which is prohibited by federal law or regulation[.]"
10 In Cape Publications the employee's misconduct is described as "a criminal act made possible by his position at a public agency." 191 S.W.3d at 14.