NOT TO BE PUBLISHED
November 21, 1994
IN RE: Mark S. Wilburn/University of Kentucky -
Jefferson Community College
OPEN RECORDS DECISION
This appeal originated in a request to inspect public records submitted by Mr. Mark S. Wilburn, an associate professor at Jefferson Community College, to the Chancellor of the University of Kentucky Community College System, Ben W. Carr, Jr., on July 14, 1994. Mr. Wilburn requested access to "the results and comments of the faculty evaluations of President Ronald J. Horvath's performance for the previous five (5) years, 1989-1993 inclusive." Mr. Wilburn subsequently amended his request, asking that he be afforded access to "the results of the survey of faculty perception of the President's performance . . . ." only.
On behalf of Jefferson Community college, Mr. George DeBin, Official Records Custodian for the University of Kentucky, responded to Mr. Wilburn's initial request on July 22, 1994. Relying on KRS 61.878(1)(a) and KRS 61.878(1)(i), now codified and hereinafter referred to as KRS 61.878(1)(j), he denied Mr. Wilburn's request, advising him that "the release of this document would be a clearly unwarranted invasion of the personal privacy of Dr. Horvath." In his view, "[t]his invasion is not counter-balanced by the public's interest in
knowing the faculty's collective comments and opinions submitted to Chancellor Carr, who is the designated evaluator of Dr. Horvath's performance as President of Jefferson Community College." Because the faculty survey does not constitute the final performance evaluation, but is only one of many factors considered by Dr. Carr in formulating that evaluation, Mr. DeBin argued that the survey results were also exempt pursuant to KRS 61.878(1)(j). Mr. DeBin reaffirmed these views in his response to Mr. Wilburn's amended request. In support of the University's position, Mr. DeBin cited 92-ORD 1145 and OAG 91-161.
The question presented in this appeal is whether the University of Kentucky - Jefferson Community College violated the provisions of the Open Records Act in denying Mr. Wilburn's request. For the reasons set forth below, we conclude that although its response was procedurally deficient, the University did not violate the Act in denying the request.
We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. Mr. Wilburn submitted his request to Chancellor Carr on July 15, 1994. Mr. DeBin responded on July 22. Thus, six workdays elapsed between the date of the request and the date of the University's response. Allowing for delays in the mail, the University's response was nevertheless procedurally deficient insofar as it was not issued within three business days.
In the interest of uniformity and adherence to the law, this office has approved, and indeed encouraged, public agencies to process all open records requests through the office of its Official Custodian of Records. However, we have also recognized that such a policy may be problematic if it occasions delays in agency response. 93-ORD-135. We encourage the University to streamline its policy by educating the various administrative offices across the campus on the importance of providing a timely response to an open records request.
Turning to the substantive issues in this appeal, we find that the University properly relied on KRS 61.878(1)(j) in denying Mr. Wilburn's request. It is the University's position that faculty input received by the Chancellor prior to his evaluation of the president of the community college is
preliminary in character. Although that input is factored into the final performance evaluation, it does not constitute that evaluation. Instead, it is Dr. Carr who reviews Dr. Horvath's performance and authors the final evaluation.
We concur. KRS 61.878(1)(j) 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 opinions of personnel within the agency. OAG 86-64; OAG 88-24; OAG 88-85; OAG 89-34; OAG 90-97. The purpose underlying the exemption is discussed at page 4 of OAG 88-85 in which 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 page 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 as 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 members who responded to Chancellor Carr's request for input had no independent authority to review Dr. Horvath's performance, and issue a final evaluation. Their input is one of several factors considered by the Chancellor in assessing the President's performance. It is he who issues the final evaluation. Although the faculty members' observations and opinions are final as to the individuals making them, they remain preliminary to the Chancellor's final evaluation.
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. We therefore conclude that the University properly relied on KRS 61.878(1)(j) in denying Mr. Wilburn's request.
Whether the University properly relied on KRS 61.878(1)(a) to justify the nondisclosure of the results of the faculty survey is a closer question. Mr. DeBin argues that Dr. Horvath is an administrative officer of the college, and not its chief executive officer. His position is therefore more closely akin to that of a rank and file employee whose evaluation can properly be withheld under KRS 61.878(1)(a). In support of this view, Mr. DeBin cites 92-ORD-1145 in which this office ordered the disclosure of a school superintendent's performance evaluation, but cautioned that "[w]e 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." 92-ORD-1145, p. 4. Our resolution of that appeal turned on the fact that the superintendent is "ultimately responsible for the management of the school system," and his performance thus of far greater interest to the public. 92-ORD-1145, p. 4. We also recognized that in view of these facts, the superintendent's expectation of privacy was correspondingly reduced.
We question Mr. DeBin's assertion that Dr. Horvath is not the chief executive officer at Jefferson Community College. As president, Dr. Horvath occupies the highest administrative office in the college, and is, presumably, "ultimately responsible for [its] management . . . ." 92-ORD-1145, p. 4. Arguably, the public's interest in the disclosure of his performance evaluation outweighs his reduced expectation of privacy in that evaluation. Moreover, since the
survey results are statistical in nature, and not descriptive of any readily identifiable person, the evaluators' privacy interests are also reduced. Having determined that the University properly withheld the results of the faculty survey under KRS 61.878(1)(j), we need not decide this issue, but are nevertheless compelled to express out doubts.
We are not persuaded that 93-ORD-17, cited by Mr. Wilburn in support of his position, has any bearing on the resolution of this appeal. In that decision, we affirmed the denial of a request for student evaluation of instructors in the Physics and Astronomy Department at Western Kentucky University, noting that because they do not reflect the performance of the Department or the University as a whole, the public interest is not subserved by release of these evaluations. Although it appears that this decision may have prompted the Western Kentucky University Faculty Senate to release the results of its own faculty survey, we do not believe that it is controlling here.
It is therefore the opinion of this office that the University of Kentucky - Jefferson Community College properly denied Mr. Wilburn's request pursuant to KRS 61.878(1)(j). Mr. Wilburn and the University may challenge this decision by initiating action in the appropriate circuit court. 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.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Mr. George DeBin
Official Records Custodian
11 Administration Building
University of Kentucky
Lexington, KY 40506-0032
Chancellor Ben W. Carr, Jr.
Office of the Chancellor
University of Kentucky
Lexington, KY 40506-0056
Dr. Mark W. Wilburn
Associate Professor of History
Jefferson Community College
7410 Autumn Bent Way
Crestwood, KY 40014