Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Henderson violated the Open Records Act in its disposition of Sarah Teague's June 9, 2015, request for "the employment application, employment records and resumes for ex-HPD officers: Robert Shoultz, James Hendricks, Ernest Green, Kenneth Wallace and Benjamin Hendricks." For the reasons that follow, we find that the city failed to comply with the Act.
Ms. Teague addressed her original request to the Henderson Police Department. On June 15, 2015, the city responded that no résumés existed; that the request for "employment records" should be more specific; and that as to the employment applications the city planned to give the former officers until July 15, 2015, "to seek the advice of legal counsel and intervene if [ sic ] in this matter" pursuant to Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575 (Ky. 1994). 1 The city cited KRS 61.878(1)(a) with regard to the former employees' personnel files inasmuch as "some information therein is personal in nature."
On July 16, 2015, the city provided redacted copies of four out of five employment applications, advising that "James Hendricks indicated that he will bring challenge to the release of his records." The present appeal does not appear to take issue with the redactions made to those four documents, described by the city as "[p]ersonal information ? where the public disclosure would constitute a clearly unwarranted invasion of personal privacy. "
Over six months later, on February 1, 2016, Ms. Teague inquired as to the status of Mr. Hendricks' intended challenge to the release of his records:
Since HPD stated they would "release these records if he chooses not to intervene" and I've never heard anything further, I am led to believe Mr. Hendricks was able to intervene to stop the release of his records.
Please send me evidence that Mr. Hendricks was able to establish a legal right to withhold his HPD records or send me his records as promised.
On February 3, 2016, the city replied that "we contacted Mr. Hendricks to obtain the documents from his legal challenge, and found that Mr. Hendricks had not filed a legal challenge. " The city therefore sent Ms. Teague a redacted copy of Mr. Hendricks' employment applications.
Ms. Teague initiated an appeal on February 11, 2016, complaining about the delay in regard to Mr. Hendricks' records as well as the failure to provide the five personnel files:
I believe Henderson P.D. has subverted the intent, short of denial. ? I never received any more records so I assumed the records [of James Hendricks] had been properly denied in court. Six months later I decided to request proof. ? Were they waiting me out hoping I wouldn't pursue the matter[?] It took eight months to get this record.
The second matter is that [as to the personnel files] HPD directed me to "identify specific documents." As a civilian I'm not capable of guessing what records HPD may have or which ones I would be entitled to. I recently re-requested all records that I am allowed to have. Can HPD require me to describe employment records or is this another "subverting the intent, short of denial?"
On February 23, 2016, City Attorney Dawn S. Kelsey responded to the appeal, stating that due to the Beckham case the city "believed that it had to notify each of these former employees" so they could decide whether to initiate an action to intervene. After Ms. Teague's follow-up letter, the city "contacted Mr. Hendricks to determine what legal challenge he had filed, and he indicated that he had subsequently decided to not challenge the production of his employment application, but had not contacted the City to let it know of his decision not to challenge it." Evidently the city, between July 15, 2015, and Ms. Teague's letter of February 1, 2016, had received no notification of any legal action by Mr. Hendricks, nor had it suggested to him any time period in which he should file such an action.
In Beckham, supra, and Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469 (Ky. 1997), the Court recognized that individuals whose privacy interests are implicated by an open records request have standing to file suit to prevent disclosure of records under KRS 61.878(1)(a), which protects "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " The case law imposes no requirement upon a public agency to notify a person whose privacy interests are affected. If an affected individual such as Mr. Hendricks is so notified, however, the burden is upon him to "take such further action as he deems appropriate." Lexington-Fayette Urban County Gov't, supra, at 473. "The procedural requirements of the Open Records Act are not indefinitely suspended while Mr. [Hendricks] weighs his options." 98-ORD-24.
As we observed in 07-ORD-230, "[t]he fact that Mr. [Hendricks] was advised of the request and was given an opportunity ? to assert an exemption from disclosure, did not relieve the City of its obligations under the Open Records Act. " Specifically, the City of Henderson's response did not comply with the obligation under KRS 61.872(5) to advise the requester, in the event of a delay beyond three business days, 2 of the "earliest date on which the public record will be available for inspection. " (Emphasis added.) As a result, Ms. Teague was required to wait for eight months; meanwhile, Mr. Hendricks had decided not to file suit. Had she not pursued the matter further with the city on February 1, Ms. Teague would have waited indefinitely for the employment application to be produced. We therefore find that the City of Henderson's procedural violation of KRS 61.872(5) frustrated the purpose of the Open Records Act within the meaning of KRS 61.880(4) ("the intent of KRS 61.870 to 61.884 ? being subverted by an agency short of denial of inspection" ).
The other issue on appeal is the city's assertion that the complete personnel file of an employee is not a proper subject for an open records request because some records therein may contain private material under KRS 61.878(1)(a). On March 18, 2016, this office gave the city an opportunity to identify specific records to which it believes KRS 61.878(1)(a) applies, by requesting, pursuant to KRS 61.880(2), "a copy of those records for which the privacy exemption is claimed." The city merely responded by sending this office copies of the complete personnel files for the five former police officers.
The city's view of the sufficiency of Ms. Teague's request for employment records is incorrect, as she is not required to identify specific documents within the former employees' personnel files. In 2003, this office overruled the line of decisions that required "a degree of specificity with regard to requests for personnel files, and by extension inmate folders, that was not required in other open records contexts." 03-ORD-012.
In 2008, the Supreme Court of Kentucky agreed, stating that "an open records request should not require the specificity and cunning of a carefully drawn set of discovery requests," but rather "[a] citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for non-disclosure. " Com. v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008). Thus, when a request is made for a personnel file or an inmate file, it is "incumbent on the [public agency] to 'separate the excepted and make the nonexcepted material available for examination.'" 03-ORD-012 (quoting KRS 61.878(4)). Since the City of Henderson erred by requiring Ms. Teague to identify specific documents among the personnel files, instead of redacting the private information and producing the rest, we find that the intent of the Open Records Act was subverted, short of a denial of inspection, within the meaning of KRS 61.880(4).
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 proceedings.
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