TO BE PUBLISHED
November 9, 1994
IN RE: Brian L. Cullinan/University of Louisville
OPEN RECORDS DECISION
This appeal originated in a request for a copy of the five year review of Dr. Thom Zimmerman, Chairman of the University of Louisville Department of Ophthalmology, submitted by Mr. Brian L. Cullinan to the University on May 19, 1994. The University denied Mr. Cullinan's request on May 26, 1994. Dr. William Morison, the University's custodian of records, advised Mr. Cullinan:
The review process has been completed. Dr. Kmetz met with the faculty and Dr. Zimmerman to discuss the committee's report. No further report has been created. Dr. Zimmerman has remained as chair.
In accordance with both the University's past practice and the Kentucky Open Records Act, I am denying your request to inspect the review committee's recommendation. That report lies in an exempt class of records described in the statute as "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended" (KRS 61.878(1)(i). Further- more, the evaluators worked under an
expectation of confidentiality. The "public disclosure" of such records, it seems to me, "would constitute a clearly unwarranted invasion of personal privacy" (KRS 61.878(1)(a)).
Mr. Morison maintained that this expectation of privacy in personnel evaluations extends to all University employees, including department heads.
In his letter of appeal to this Office, Mr. Cullinan argues that as chairman of the Department of Ophthalmology, Dr. Zimmerman's performance "is of significant interest to the public . . . ." Continuing, he observes:
The Department of Ophthalmology has a total annual budget of about $4,000,000.00. Recently, the Department's training program for new doctors was placed on probation. And U of L's internal auditors criticized the Department for lax financial controls and for improperly charging the government for research expenses.
Relying on earlier opinions of this Office in which we held that the performance evaluations of the Louisville Chief of Police and the Superintendent of the Bullitt County School System were subject to disclosure, Mr. Cullinan urges this Office to adopt this line of reasoning, and to order the release of Dr. Zimmerman's evaluation.
In a followup letter to this Office date July 28, 1994, Ms. Angela D. Koshewa, Associate University Counsel, elaborated on the University's position. She explained:
In the U of L School of Medicine, a department chair serves at the pleasure of the Board of Trustees upon the recommendation of the dean. A performance review takes place after the fifth year of service or, in certain instances, earlier. The evaluation process is initiated with the dean's appointment of a faculty committee. The committee's function includes seeking the opinions of the department's executive faculty, and can include seeking opinions from external reviewers. The committee
makes a recommendation to the dean among the following: endorsement, provisional endorsement, or nonendorsement. The dean receives the recommendation of the committee and reviews the recommendation with the chair and executive faculty in the department. The dean then makes the final decision.
In the present case, after the dean received the recommendation of the committee and reviewed it with the executive faculty and the department chair, he determined that Dr. Zimmerman would remain as chair. No written report was issued by the dean to memorialize his decision. Dr. Zimmerman simply remained as chair.
The committee recommendation is simply that, a recommendation. It contains the committee's preliminary recommendations for the dean to consider in his decision. The dean did not incorporate the committee's written report or adopt it as his final decision.
In support of the University of Louisville's position, Ms. Koshewa cited OAG 88-32 and OAG 91-161.
The issue presented in this open records appeal is whether the University of Louisville properly relied on KRS 61.878(1)(a) and (i) in denying Mr. Cullinan's request. For the reasons set forth below, we conclude that the University properly denied his request.
KRS 61.878(1)(i) excludes from the mandatory disclosure provisions of the Open Records Act, "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]" This exception is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations. It has thus been interpreted to authorize the nondisclosure of preliminary recommendations of personnel within the agency. OAG 86-64; OAG 88-24; OAG 88-85; OAG 89-39; OAG 90-97. The purpose underlying the exemption is discussed at page 4 of OAG 88-85 wherein this Office observed:
[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
If, however, predecisional documents are incorporated into final agency action, they are not exempt.
This dichotomy is best illustrated in City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982). In that opinion, the Kentucky Court of Appeals held that the investigative files of the City police department were exempt from public disclosure as preliminary documents. At p. 659, the court reasoned:
It is the opinion of this court that subsections (g) and (h) [until recently codified as subsections (h) and (i) and now codified as subsections (i) and (j)] . . . protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.
See also, OAG 86-64 (holding that monthly and annual reports submitted to central state government by one of its agencies in the field can be withheld as long as the reports neither indicate final agency action nor involve the incorporation of a preliminary report into a final report of the agency); OAG 89-34 (holding that a draft report submitted by the U.S. EPA to Kentucky's Division of Air Quality is a preliminary document, and does not lose that character by having been submitted for review and written comment of the state agency); OAG 90-97 (holding that a public officials's letter to the Parole Board, containing his opinion as to whether the Board should grant parole, is exempt from inspection unless incorporated into or made a part of the Board's final decision on the matter).
In contrast, predecisional documents which are incorporated by the agency into its final action forfeit their preliminary status and are thereafter subject to inspection. Thus, in OAG 89-69 this Office held that a legal memorandum, which was originally preliminary in character, became a public record when it was incorporated into a notice of agency action. There, we observed:
The [notice of agency action] not only refers to the memorandum, but clearly implies that its recommendations are being adopted by the Cabinet for the action taken. The letter states that the memorandum had been requested, that it was now 'in hand,' what was the recommendation, and that 'therefore' the Cabinet would expect Ashland to comply with the memorandum's recommendations.
OAG 89-69, at p. 3.
Like Internal Affairs, the faculty committee appointed by the dean to evaluate Dr. Zimmerman had no independent authority to determine what final action would be taken relative to his continuing service as chairman of the Department of Ophthalmology. The information it gathers is submitted to the dean, along with a recommendation. It is the dean, however, who makes the final decision. Although the committee's work is at this point final, "it remains preliminary to the [dean's] final decision." City of Louisville, supra at 659. Unless the dean "adopts its notes or recommendation as part of his [or her] final action . . . ," the committee's evaluation retains its preliminary characterization. Id.
Ms. Koshewa indicates that after reviewing the committee's evaluation, the dean determined that Dr. Zimmerman would remain as chair. He did not memorialize his decision in a written report. Nor did he incorporate the committee's evaluation or adopt it as his final action. The evaluation therefore retains its preliminary character.
In 94-ORD-120, this Office reaffirmed the well- entrenched principle that an evaluation is, in general, a matter of opinion and does not represent any final action on the part of the agency. OAG 77-394; OAG 78-738; OAG 79-348; OAG 80-614; OAG 82-204; OAG 82-211; OAG 89-90; OAG 91-128; OAG 91-161. It is the action which the public agency takes in light of the evaluation that the public is entitled to know. In the instant appeal, that action was the dean's decision that Dr. Zimmerman would remain chairman of the Department of Ophthalmology. Compare, 94-ORD-120 (holding that County Judge/Executive's failure to prepare his own evaluation of Director of Public Health Services by a date certain, as required by local ordinance, constitutes concurrence with Board of Health's annual review, which in turn forfeits its pre- liminary character, operating as the "final decision" of the County Judge).
It is somewhat troubling that the University has, at least on this occasion, avoided the mandate of the Open Records Act by failing to generate a record of its final action. KRS 171.640 requires that "[t]he head of each state or local agency shall cause to be made and preserved records containing adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the
government and of persons directly affected by the agency's activities." The General Assembly recently recognized that there is "an essential relationship between the intent of [the Open Records Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ." KRS 61.871, as amended, effective July 15, 1994. This Office has not yet been asked to resolve the question of whether an agency's failure to document its "essential transactions" constitutes a violation of the amended Open Records Act. Inasmuch as this appeal arose out of incidents which pre-date the amendment, we do not address the question now. It is clear, however, that "[s]uch documentation [must] be created, managed, and preserved in accordance with standards, rules and regulations prescribed by the department [for library and archives] under the provisions of KRS 171.410 to 171.740." KRS 171.640. In light of the new language of KRS 61.871, this Office will work with the Department for Library and Archives to insure that the intent of both laws is effectuated.
Turning to the University's second line of defense, we find that KRS 61.878(1)(a) also authorizes the nondisclosure of the faculty committee's evaluation report. That exception permits an agency to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]" The Attorney General has long recognized that inspection of employee evaluations may be denied under KRS 61.878(1)(a). OAG 77-394; OAG 79-348; OAG 80-58; OAG 82-204; OAG 86-15; OAG 89-90. The privacy interests protected are as much those of the evaluator as those of the person being evaluated insofar as the evaluator generally makes his evaluation with the understanding that it will remain confidential.
In 92-ORD-1145, we departed from this position, declaring that the performance evaluation of a school system superintendent was subject to disclosure. This decision was premised on the notion that the public's interest in reviewing those portions of the superintendent's evaluation which have a direct bearing on the management of the school system is superior to the reduced expectation of privacy in that document which the superintendent might have. At page 4 of that decision, we expressly declined to extend this reasoning to rank and file public employees, noting:
We do not, in so holding, establish a rule of general application vis-a-vis performance
evaluations. Nor do we depart from any opinion previously issued by this Office. [Footnote omitted.] Because the Superintendent is ultimately responsible for the management of the school system, his performance is of far greater interest to the public, and his expectation of privacy in the evaluation of that performance is correspondingly reduced. The same cannot be said of the other employees of a school system or any other public agency, since disclosure of their evaluations may spur unhealthy comparisons, breeding discord in the work place, and result in injury and embarrassment to the employee. We continue to ascribe to the view that an employee's right of privacy in his evaluation is superior to the public's interest in inspecting that evaluation. Our decision is limited to the facts presented in this case.
We affirmed this holding in 92-ORD-1375, declaring that anonymous evaluations of professors made by their students are exempt from public inspection pursuant to KRS 61.878(1)(a), and in 94-ORD-54, declaring that a city auditor's evaluation is exempt because she is not "'ultimately responsible for the management' of the City of Louisville." 94-ORD-54, p. 4.
Unlike the superintendent of schools, Dr. Zimmerman is not "ultimately responsible for the management" of the public agency he serves. No doubt, his performance is of great public interest. Nevertheless, the question of whether the public's interest outweighs Dr. Zimmerman's privacy interest must be answered in the negative. Accordingly, it is our opinion that the University properly withheld the evaluation pursuant to KRS 61.878(1)(a), as well as KRS 61.878(1)(i).
Mr. Cullinan may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Dr. William J. Morison, Director
University Archives and Records Center
Ekstrom Library, University of Louisville
Louisville, KY 40292
Hon. Angela Koshewa
Associate University Counsel
Office of University Counsel
University of Louisville
Louisville, KY 40292
Hon. Brian Cullinan
Attorney At Law
One Corporate Plaza
The 22nd Floor
220 W. Main Street
Louisville, KY 40202