25-ORD-106
April 24, 2025
In re: Cincinnati Enquirer/City of Covington
Summary: The City of Covington (“the City”) did not violate the Open
Records Act (“the Act”) when it denied inspection of employee
performance evaluations under KRS 61.878(1)(a).
Open Records Decision
On December 12, 2024, the Cincinnati Enquirer (“the Appellant”) requested to
inspect the personnel file of a former City firefighter. In a timely response, the City
made available a redacted copy of the personnel file. Among the documents not made
available were 12 pages of performance evaluations, which the City withheld under
KRS 61.878(1)(a), explaining that “[p]erformance evaluations constitute information
of a personal nature, where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.” The City further stated that
“performance evaluations can contain a great deal of personal information and should
not be subject to disclosure without the most pressing of public needs.” Finally, the
City asserted that “[t]hese evaluations are from 2013 and 2018, and a comparative
balancing of the interests here does not reveal a pressing public interest that would
outweigh the former employee’s privacy interest.” This appeal followed.
KRS 61.878(1)(a) exempts from disclosure under the 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 exception
requires a “comparative weighing of the antagonistic interests” between privacy and
the public interest in disclosure. Ky. Bd. of Exam’rs of Psychologists v. Courier-
Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). Kentucky courts
have recognized that “the performance of an ordinary employee or even one of
comparatively high rank is not of such significant public interest that it should be
subject to disclosure.” Cape Publ’ns v. City of Louisville, 191 S.W.3d 10, 13 (Ky. App.
2006). Moreover, public employees maintain a significant privacy interest in their
performance evaluations.The confidentiality of performance evaluations allows evaluators to
speak more frankly about an employee than they might if the
evaluations were known to be open to public disclosure. In addition,
performance evaluations certainly can contain a great deal of personal
information, and should not be subject to disclosure without the most
pressing of public needs.
Id. One example of such a “pressing public need” is when the public employee is
charged with “committing a criminal act made possible by his position at a public
agency[.]” Id. at 14. In Cape Publications, the public employee was charged with such
an offense, which also led to the administrative suspension, and eventual resignation,
of his supervisor. Id. Therefore, the Court found that the employee had “to some
extent forfeited his privacy interest” by engaging in criminal activity, and that both
his evaluation and that of his supervisor were subject to partial disclosure. Id.
Here, the Appellant claims disclosure of the firefighter’s evaluations would not
constitute an unreasonable invasion of personal privacy because he “was accused of
wrongdoing while in the course of his duties as a firefighter, and because his
performance evaluations will shed light on the operation of a public entity.” In
response, the City acknowledges the firefighter was accused of “misconduct in 2024
and late 2023” and “was charged with multiple violations of city policy and fire
department policy in 2024.”1 Unlike the situation in Cape Publications, the firefighter
here was not charged with criminal conduct.2 Rather, the record indicates he was
accused of “unprofessional behavior” and being “verbally abusive” to a coworker.
The Act requires a “case-by-case analysis” of privacy claims under
KRS 61.878(1)(a). Cape Publ’ns, 191 S.W.3d at 14. In Cape Publications, the Court of
Appeals found a city employee forfeited some degree of his privacy interest by
committing a crime. The court also recognized a “public interest in knowing what a
city evaluator thought of the job performance of a supervisor of a person who used his
position to commit a crime.” Id. Here, however, there is no insinuation of criminal
conduct, nor any alleged misconduct by a supervisor or an agency head, but merely
violations of city policy and fire department policy by a low-level employee.
Furthermore, the evaluations at issue pertain to the firefighter’s performance from
2013 and 2018, many years before he allegedly committed the policy violations.
Therefore, as to these specific evaluations, there is no basis to infer the employee
1
Those charges resulted in a disciplinary hearing, during which the firefighter chose to resign.
2
Further, even in a criminal context, a person who is investigated, but not charged with a crime,
maintains a privacy interest under KRS 61.878(1)(a). See Lexington H-L Services, Inc. v. Lexington–
Fayette Urb. Cnty. Gov’t, 297 S.W.3d 579, 584 n.6 (Ky. App. 2009); see also 12-ORD-227. Thus,
“uncharged suspects” have a privacy interest that criminal defendants do not. Ky. New Era, Inc. v.
City of Hopkinsville, 415 S.W.3d 76, 88 (Ky. 2013).forfeited any portion of his privacy interest, nor is there any “pressing” public interest
that would overcome the normal “confidentiality of performance evaluations” under
KRS 61.878(1)(a). Cape Publ’ns, 191 S.W.3d at 13; see, e.g., 21-ORD-072; 16-ORD-
185; 07-ORD-125 (finding performance evaluations exempt from inspection).
Accordingly, the City did not violate the Act when it denied inspection of the
firefighter’s evaluations.
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/ James M. Herrick
James M. Herrick
Assistant Attorney General
#126
Distribution:
Brian D. Wright, Esq.
Starr M. Ford IV, Esq.
Frank M. Schultz, Esq.
Hon. Joseph U. Meyer
Susan Ellis, City Clerk