TO BE PUBLISHED
February 12, 1993
IN RE: Scott Bachert/Western Kentucky University
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from Western Kentucky University's denial of Mr. Scott A. Bachert's November 6, 1992, request to inspect certain documents in the University's custody. Those documents are identified as portions of the student evaluations of instructors in the Physics and Astronomy Department for the past five years which "had any effect on the management and functions of" that Department, or which "relate to whether an instructor received any particular benefit or detriment as a result of the evaluation." Mr. Bachert is an attorney whose firm represents the College Heights Herald, a student operated newspaper at Western, and his request was made under the Open Records Law.
In a letter dated November 12, 1992, Ms. Deborah Tomes Wilkins, University Counsel, denied Mr. Bachert's request. She took the position that the evaluations were exempt from the Open Records Law pursuant to KRS 61.878(1)(a). In support of this position, she cited OAG 86-15 and 92-ORD-1375. The latter decision originated in a College Heights Herald reporter's request for all student evaluations of instructors in the Physics and Astronomy Department for the past five years. There, we upheld Western's decision to withhold the disputed documents, concluding that an evaluation of a university professor is exempt from public inspection pursuant to KRS 61.878(1)(a), (h), and (i), regardless of who prepares it.
In his letter of appeal to this Office, Mr. Bachert attempts to distinguish this appeal from 92-ORD-1375. He notes that he and his clients "are only asking for the portions of the student evaluations that had any effect on the management and functions of the Physics and Astronomy Department." Mr. Bachert maintains that by so limiting their request, they
permit the University to redact "any personal information of the instructors which would constitute an unwarranted invasion of privacy." In his view, the facts presented in this appeal are analogous to the facts presented in 92-ORD-1145, in which we held that the Bullitt County Board of Education improperly withheld the performance evaluation of its superintendent. Mr. Bachert notes that in that decision we concluded that the public's interest in reviewing those portions of the superintendent's performance evaluation which have a direct bearing on his management of the school system, and the progress of the school system generally, is superior to the reduced expectation of privacy in that document which the superintendent might have. Mr. Bachert also cites Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), arguing that the balancing test mandated by that case tips in favor of disclosure of those portions of the evaluations which impact on the management and operation of the Physics and Astronomy Department.
In a follow up letter to this office, Ms. Wilkins asserts that 92-ORD-1145 is not dispositive of the present appeal. She observes:
Because the superintendent [in that decision] was ultimately responsible for the management of the school system, his performance was a grater [sic] interest to the public and his expectation of privacy was correspondingly reduced. However, [the Attorney General] limited that opinion by stating that other employees of a school system or public agency are not subject to the same disclosure since disclosure of their evaluations 'may spur unhealthy comparisons, breeding discord in the work place, and result in injury and embarrass- ment to the employee.'
(Emphasis in original.) She notes that student evaluations are not directed at management of the University, but, by Mr. Bachert's own admission, are aimed at enabling the instructor "'to gain a better understanding of the strengths and weaknesses of the instructor as well as his/her effectiveness as an instructor as perceived by the student body.'" Indeed, the University has no written policy on the use of student evaluations, and a department head is not bound to consider them. Tenure and promotion decisions are governed by a faculty
handbook, and the evaluations therefore have no direct bearing on the management of the Physics and Astronomy Department. She urges this Office to reaffirm its decision in 92-ORD-1375.
The question presented in this open records appeal is whether the University properly denied Mr. Bachert's modified request for those portions of student evaluations of instructors in the Physics and Astronomy Department at Western for the past five years which "were used in determining whether a professor received any particular benefit or detriment," or "which have a direct bearing on the management and functions of the Department." For the reasons set forth below, we conclude that the University's actions were consistent with the Open Records Law, and reaffirm our decision in 92-ORD-1375.
As both parties to this appeal correctly note, in 92-ORD-1145 this Office held that the potential harm to a school superintendent's privacy interest from disclosure of his performance evaluation is outweighed by the public's interest in disclosure of the requested information to the extent that that information pertains to the management and supervision of the school system, generally. However, in that opinion we expressly declined to extend the reasoning of the decision to other public employees, concluding that although a superintendent's performance is of tremendous interest to the public and his expectation of privacy correspondingly reduced, "[t]he same cannot be said of the other employees of the school system or any other public agency." Continuing, we noted that disclosure of employee evaluations might prove disruptive in the workplace by pitting one employee against another, resulting in unnecessary injury and embarrassment to the employee. We believe this logic is especially compelling in the present context.
92-ORD-1375 was premised on a number of earlier opinions of this Office. For example, in OAG 79-348, at p. 2, we questioned the fairness and value of anonymous evaluations of a teacher by a student, and concluded that we "[did] not want to compound the unfairness by saying that the evaluation should be made public." Similarly, in OAG 80-614, at p. 1, we stated that "[a]n evaluation of a college teacher's performance and professional proficiency is not a popularity contest by secret ballot." Clearly, an instuctor has a substantial interest in the nondisclosure of anonymous student evaluations.
On the other hand, the public's interest in disclosure of the student evaluations is minimal at best. As noted by Ms. Wilkins, and acknowledged by Mr. Bachert, student evaluations
are intended to facilitate the instructor's understanding of his strengths and weaknesses, as well as his effectiveness as an instructor. They are not reviewed by the dean or the University's administration. Indeed, Ms. Wilkins indicates, "Whether or not those evaluations are used or even considered by the Department Head is a decision that is purely personal to the Department Head." They do not play a role in the operation of the Physics and Astronomy Department, nor do they reflect the performance of the Department or University as a whole. The public's interest in knowing that the University is properly executing its function is not subserved by release of the evaluations. We therefore conclude that Western Kentucky University properly denied Mr. Bachert's request under KRS 61.878(1)(a) and 92-ORD-1375 is hereby affirmed.
Mr. Bachert may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Scott A. Bachert
Harned, Anderson & Bachert
324 East Tenth Avenue
P. O. Box 1270
Bowling Green, Kentucky 42102-1270
Hon. Deborah Tomes Wilkins
Campbell, Kerrick and Grise
1025 State Street
P. O. Box 9547
Bowling Green, Kentucky 42102-9547