24-ORD-002
January 16, 2024
In re: Daniel Owens/Cabinet for Health and Family Services
Summary: The Cabinet for Health and Family Services (“the Cabinet”)
violated the Open Records Act (“the Act”) when it entirely withheld from
an unsuccessful applicant the interview questionnaire associated with
his interview instead of separating the exempt interview questions from
the nonexempt notes and assessments of his answers to those questions
and providing him the latter for inspection.
Open Records Decision
Daniel Owens (“the Appellant”) submitted a request to the Cabinet for copies
of “the three panelists’ notes taken on the questionnaire form” regarding their
“interpretations” of the answers he gave during a job interview. In a timely response,
the Cabinet denied the request, claiming the records constitute “examination
materials” exempt from inspection under KRS 18A.020(4). The Cabinet explained the
records qualified as “examination materials” because they are used to “evaluate an
applicant’s qualifications for the position and may be used again in future
interviews.” The Cabinet also claimed the records were “preliminary drafts and notes”
exempt under KRS 61.878(1)(i). This appeal followed.
Public agency employees and applicants for public-agency employment
generally possess a greater right of access to records specifically related to them than
the public generally has. Specifically, “[n]o exemption in [KRS 61.878] shall be
construed to deny, abridge, or impede the right of a public agency employee [or] . . .
an applicant for employment . . . to inspect and to copy any record including
preliminary and other supporting documentation that relates to him or her.”
KRS 61.878(3) (emphasis added). Among the records to which a public agency
employee or applicant has a broad right of access are “evaluations” and “examination
scores.” Id. However, KRS 61.878(3) excludes from this broad right of access the
“examinations” themselves. Id. Likewise, “a state employee” or “an applicant for
[state] employment” “shall have the right to inspect and to copy any record and
preliminary documentation and other supporting documentation that relates to him,except that an applicant . . . or a state employee shall not have the right to inspect or
to copy any examination materials.” KRS 18A.020(4) (emphasis added).
KRS 18A.020(4) is incorporated into the Act’s exceptions under KRS 61.878(1)(l),
which exempts from inspection “[p]ublic records or information the disclosure of
which is prohibited or restricted or otherwise made confidential by enactment of the
General Assembly.”
Unlike KRS 61.878(3), KRS 18A.020(4) makes no mention of “evaluations” or
“examination scores.”1 Moreover, the term “examination materials” is not defined in
KRS Chapter 18A. See KRS 18A.005. The Office, however, has previously found that
interview questionnaires, and the notes taken thereon, qualify as “examination
materials” under KRS 18A.020(4). See, e.g., 17-ORD-093; 04-ORD-045. The Office’s
reasoning in these decisions relied on an earlier decision, 02-ORD-168, which did not
involve state employee interview questionnaires, but materials related to the City of
Louisville’s civil service examination for promoting police officers and “the
assessment” of one police officer’s “performance.” In 02-ORD-168, the Office analyzed
the public agency’s denial under KRS 61.878(3), which as discussed, does not extend
a public agency employee’s broad right of access to “examinations.” Relying on
Webster’s New World Dictionary (2d ed. 1974), the Office found the definition of the
noun “examination,” as used in KRS 61.878(3), meant “an examining or being
examined; investigation; inspection; scrutiny; inquiry; testing.” Id. at 9. The Office
found the verb “examine” meant “to look at or into critically or methodically in order
to find out the facts, conditions, etc. of; . . . scrutinize.” Id. The Office then concluded,
“While an examination is commonly understood to involve an objective assessment of
knowledge and skill, these definitions suggest a broader meaning which encompasses
the subjective elements of the promotional examination and records relating thereto
that are the subject of this appeal.” Id.
The Office previously concluded that “an examination is commonly understood
to involve an objective assessment of knowledge and skills.” Id. However, it is
doubtful that such an interpretation should include “the subjective elements” of
assessing an applicant’s answers to interview questions. Rather, to the extent such
“subjective elements” have any connection to what is commonly understood to be “an
examination,” it more closely resembles an “examination score,” or an “evaluation,”
which under KRS 61.878(3), an applicant for employment is entitled to inspect. It is
reasonable to conclude that neither the public nor applicants for employment should
have access to interview questions that may be used again, because future applicants
would have an unfair advantage in being able to prepare answers ahead of time if
such information were disseminated. See KRS 61.878(1)(g) (exempting from
inspection “[t]est questions, scoring keys, and other examination data used to
1
However, KRS 18A.020(2) mentions “evaluations” in the context of “personnel action[s]” by
requiring every personnel file to contain copies of “changes in status including evaluations” supporting
any particular “personnel action.”administer a licensing examination, examination for employment, or academic
examination before the exam is given or if it is to be given again”). However, it is not
clear why applicants for employment should be prevented from obtaining an
interviewer’s “evaluation” about their own qualifications, or supposed lack thereof,
for any particular position. Indeed, it seems the very purpose of KRS 61.878(3) and
KRS 18A.020(4) is to give such requesters this type of feedback on their job or
interview performances.
Given these concerns with its previous, and expansive, interpretation of the
term “examination materials,” the Office asked the Cabinet to provide copies of the
disputed records. See KRS 61.880(2)(c). While the Office cannot describe the content
of the specific records in dispute, a blank version of the “interview questionnaire
worksheet” is publicly available.2 In sum, it contains a section for each question
asked; blank space for the interviewer to take notes regarding each question; and a
space for the interviewer to indicate by a check mark his or her “assessment” of the
interviewee’s answer to each question as “excellent,” “very good,” “good,” “fair,” or
“poor.” The last page also contains a place for additional notes and an overall
evaluation using the same criteria used for assessing each answer (i.e., “excellent” to
“poor”). The only difference between the publicly available form and the records in
dispute here is that the spaces for the questions, notes, assessments of each answer,
and overall evaluation have been completed. These records are in no way comparable
to the general understanding of an “examination,” in which questions with objective
answers are asked. Rather, the records are more comparable to a performance
evaluation than an “examination,” even though by its very nature an interview
cannot fully resemble a performance evaluation. Indeed, the last section of the form
is titled “evaluation.” KRS 61.878(3) specifically allows an applicant for employment
to review “evaluations.” It is not clear why the General Assembly would give an
unsuccessful applicant for a job the right to inspect any records about himself except
for the very evaluation that resulted in him not obtaining the job, which is likely the
very record in which the unsuccessful applicant would be most interested.
In 17-ORD-093, the Office correctly held that one unsuccessful applicant for
employment could not obtain the interview materials of another unsuccessful
applicant under KRS 61.878(1)(a). But the personal privacy exemption would not
apply to the unsuccessful applicant seeking the materials related to his or her own
interview. Moreover, the Office correctly noted that the questions appearing in the
interview materials could potentially be used in future interviews, and thus, it would
give future candidates for employment an unfair advantage if the questions were
subject to inspection. Id.; see also KRS 61.878(1)(g). Accordingly, the Office correctly
held that the questions themselves constitute “examination materials” under
2
See
https://extranet.personnel.ky.gov/_layouts/15/DL/DL.aspx?Library=DHRA&F…
stionnaireWkst.doc (last accessed Jan. 16, 2024)KRS 18A.020(4). But the Office swept too broadly when it also held that the interview
notes and assessments could be withheld under KRS 18A.020(4). Such materials are
expressly subject to inspection by the unsuccessful applicant under KRS 61.878(3).
Accordingly, the Office overrules that portion of 17-ORD-093, and any other previous
decision, including 04-ORD-045, which states otherwise.
Simply put, an unsuccessful applicant for employment or promotion has a right
to inspect his evaluation and notes evaluating his answers under KRS 61.878(3). This
is true even if such materials are “preliminary.” Id. Thus, KRS 61.878(1)(i) does not
deny the Appellant inspection of the requested records. Moreover, under
KRS 61.878(4), the Cabinet must separate exempt information from nonexempt
information and provide the latter for inspection. As a result, the Cabinet may redact
the interview questions themselves, but not the notes the interviewers took, or their
assessment of the Appellant’s answers. Accordingly, the Cabinet violated the Act
when it withheld the requested records in their entirety, rather than separating the
exempt questions from the nonexempt notes and assessments and providing the
latter to the Appellant.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Marc Manley
Marc Manley
Assistant Attorney General
#482
Distribution:
Daniel Owens
Elyssa S. Morris
Payton Sands