NOT TO BE PUBLISHED
March 23, 1993
IN RE: Robert Sisco/Pike County School System
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Pike County School System relative to Mr. Robert Sisco's request to inspect a list of the names of individuals who have been appointed to the Teacher Selection Screening Committee. Mr. Larry M. Burke, Superintendent of the Pike County School System, denied Mr. Sisco's request in a letter dated February 14, 1993. Relying on KRS 61.878(1)(a) and (c), he explained that the members were assured that their identities would not be disclosed before they agreed to serve as members of the committee. He expressed concern that release of the names of the committee members "could subject them to unwarranted harassment and undue influence," and create "an unfair advantage to other candidates for teaching positions who did not have the same information."
The sole issue presented in this open records appeal is whether the Pike County School System's actions constitute a violation of the Open Records Law. For the reasons set forth below, we conclude that the school system improperly relied on KRS 61.878(1)(a) and (c) in denying Mr. Sisco's request.
The 1992 General Assembly redefined the term "public agency" and significantly broadened its scope. KRS 61.870(1)(j) now provides that a public agency includes "[a]ny
board, commission, committee, subcommittee, ad hoc committee, advisory committee, council, or agency, except for a committee of a hospital medical staff, established, created, and controlled by a public agency as defined in paragraph (a), (b), (c), (d), (e), (f), (g), (h), (i), or (k) of this subsection." There can be little doubt that the Pike County Board of Education is a "public agency" for purposes of the Open Records Act. Thus, any committee created by the Board is a public agency, and subject to the mandatory disclosure provisions of the Act.
In a letter to this office dated January 27, 1993, Mr. Neal Smith, an attorney representing the Pike County Board of Education, stated that the screening committee consists of twenty-five retired school teachers, recommended by the members of the Board, who are paid the daily rate they would receive as a substitute teacher for each day of service. From these twenty-five names, the superintendent randomly selects five individuals to evaluate the applicants for each vacant certified position. The screening committee members then select and recommend the three most qualified applicants to the superintendent for his consideration and ultimate hiring.
It is clear that the Teacher Selection Screening Committee is a "public agency" within the meaning of KRS 61.870(1)(j). The committee was established by the Board and operates at its direction. The Board cannot, therefore, abrogate the mandatory disclosure provisions of the Open Records Act by a promise of confidentiality that is inconsistent with the Act.
Mr. Burke argues that release of the committee members' names could subject them to harassment and undue influence, and that therefore the information can properly be withheld pursuant to KRS 61.878(1)(a). That statute authorizes the nondisclosure of:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]
The Kentucky Supreme Court recently enunciated a clear test for analyzing the propriety of a public agency's invocation of the privacy exception. In Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 328 (1992), the Court observed:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.
Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Board of Examiners, supra, at 328. As a result, there is no blanket or per se applicability of KRS 61.878(1)(a) to a given category of records.
The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory function and its public servants are serving the public, and the individual's interest in the nondisclosure of records that touch upon the intimate or personal features of his life. The purpose and mission of the Teacher Selection Screening Committee is to evaluate applicants for certified positions and recommend the most qualified applicants to the superintendent. The public's interest in disclosure is thus premised on its right to know who the members are and whether they are qualified to serve on the committee. Surely, one of those qualifications is the ability to withstand harassment and resist undue influence, and render an objective and impartial decision.
The Screening Committee Members' countervailing interest in nondisclosure is minimal at best. This office has consistently recognized that although a person's name is personal, it is the least private thing about him and should only be withheld when there is a special reason provided by statute or court order, as in the case of adoption records. OAG 82-234. Thus, we have held that the public is entitled to know the names, positions, and salaries of public employees.
See, e.g. OAG 76-717; OAG 87-37; OAG 91-48. Inasmuch as the members of the Teacher Selection Screening Committee serve the public, and are paid with funds from public coffers, they are public servants and accountable to the public. Whatever minimal privacy interest they might have in the nondisclosure of their identities is clearly outweighed by the public's interest in ascertaining who they are and insuring that they are qualified to serve.
In addition, we find that Mr. Burke's reliance on KRS 61.878(1)(c) is misplaced. That exception authorizes the nondisclosure of:
(c)1. Records confidentially disclosed to an agency, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records, and which are compiled and maintained:
a. In conjunction with an application for a loan;
b. In conjunction with the regulation of commercial enterprise, including mineral exploration records, unpatented, secret commercially valuable plans, appliances, formulae, or processes, which are used for the making, preparing, compounding, treating, or processing of articles or materials which are trade commodities obtained from a person; or
c. For the grant or review of a license to do business.
To successfully invoke this exception, an agency must establish that the requested records: 1) were confidentially disclosed to it and are generally recognized as confidential or proprietary; 2) if disclosed would permit an unfair commercial
advantage to competitors of the entity making disclosure; and 3) were compiled and maintained either in conjunction with an application for a loan, the regulation of commercial enterprise, or for the grant or review of a license to do business. OAG 91-70; OAG 91-72; OAG 91-105; OAG 92-66; 92-ORD-4020. The Pike County School System has failed to sustain its burden of proving that the records withheld satisfy this three part test. Although Mr. Burke indicated that the members of the Committee were offered assurances that their identities would remain confidential in advance of their agreeing to serve, he did not, nor do we believe he could, establish that the records satisfy the second and third parts of the test. Clearly, this exception was not intended to protect the identities of members of a public agency.
We therefore conclude that the Pike County School System erred in failing to release the disputed record, and should promptly arrange for Mr. Sisco to inspect a list of the names of individuals who have been appointed to the Teacher Selection Screening Committee.
The Pike County School System 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
Mr. Larry M. Burke, Superintendent
Pike County School System
P. O. Box 3097
Pikeville, KY 41502
Mr. Robert Sisco
104 Thompson Branch
Pikeville, KY 41501