April 4, 1994
IN RE: R. Keith Cullinan/City of Louisville
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. R. Keith Cullinan to the City of Louisville. Although he has not provided us with a copy of his written request or the City's written denial, Mr. Cullinan indicates that he originally requested access to the personnel records of the City's Auditor, Barbara Kalkhof, as well as her job description. That request was denied. According to Mr. Cullinan, the City took the position that Mr. Cullinan's request was not sufficiently specific. He then amended his request, asking that he be permitted to inspect records reflecting Ms. Kalkhof's salary, resume, performance evaluations, and "whatever additional documents the City might have reciting her qualifications." Mr. Cullinan states that the City afforded him access to "minimal records regarding Ms. Kalkhof's background and salary," but denied his request to review her performance evaluations. The City of Louisville relied on KRS 61.878(1)(a), arguing that release of her performance evaluations would constitute a clearly unwarranted invasion of Ms. Kalkhof's personal privacy. This appeal followed.
In his letter of appeal to this Office, Mr. Cullinan asserts:
It is patently absurd for the City of Louisville to claim this exception as its basis for denial. The records requested relate to Ms. Kalkhof in her capacity as a City employee, and seek information that is
certainly 'not of a personal nature.' I'm not asking for her shoe size or if she's a good cook or even if she files her tax returns on time, but rather information as the performance of her government job.
Government employees are supposed to be accountable to the public who pay their salaries. To deny taxpayers the right to review the job performance of a public employee would confound fundamental logic and abrogate the clear intent of the Open Records Law.
In support of this decision, Mr. Cullinan cites University of Kentucky v. Courier-Journal & Louisville Times Co., Ky., 830 S.W.2d 373 (1992). He urges this Office to issue a decision declaring "that all personnel records of Ms. Kalkhof, and particularly all job evaluations of her employment as City Auditor . . ." are open records, and must be made available for inspection.
We are asked to determine if the City of Louisville violated the Open Records Act in denying Mr. Cullinan's request for all personnel records pertaining to Ms. Kalkhof, and, in particular, her performance evaluations. For the reasons set forth below, we conclude that the City properly denied Mr. Cullinan's request.
This Office, and the courts of the Commonwealth, have consistently held that because much of the information contained in personnel files is personal in nature, and the disclosure of such information serves no public interest, individuals seeking to inspect personnel files under the Open Records Law must specifically identify the records sought. Board of Education for Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109, 111 (1981); OAG 85-88. In OAG 85-88, p. 2, we upheld the Kentucky State Penitentiary's denial of a request to inspect an entire inmate file, noting that "[a]n inmate's institutional file in all probability contains some information which may be inspected by the inmate or the public and some information which is exempt from public inspection." Moreover, we observed:
In his request to inspect, [the requestor] never referred to any specific documents. He merely referred to his complete institutional central file. In OAG 76-375,
. . ., we said in part that if a person cannot describe the records he seeks to inspect with specificity, there is no requirement that copies of the records be delivered to him. In addition, 'Blanket requests for information on a particular subject without specifying certain documents need not be honored.'
OAG 85-88, p.2; OAG 91-62. Clearly, caselaw and prior opinions require the requesting party to reasonably identify the records contained in a personnel file which he wishes to inspect to enable the custodian of the file to determine if the records are exempt under KRS 61.878(1)(a), the privacy exemption to the Open Records Law.
In his original request, Mr. Cullinan asked for "all personnel records of [Barbara] Kalkhof." Like the requestor in OAG 85-88, he did not refer to a specific document or documents. We believe that OAG 85-88 is dispositive of this portion of Mr. Cullinan's appeal. Accordingly, we find that the City of Louisville properly denied is original request.
Turning to the second issue presented in this appeal, we find that the City properly relied on KRS 61.878(1)(a) in denying Mr. Cullinan's request for Ms. Kalkhof's performance evaluations. 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 83-286; OAG 86-15; OAG 89-90. In OAG 77-394, we stated:
The evaluation of [an employee's] performance is a matter of opinion and does not constitute any action on the part of the [agency]. We believe that the [employee] is therefore entitled to have such information withheld from the public. The action which the [agency] takes in light of the evaluation is what the public is entitled to know.
OAG 77-394, p. 2. Moreover, we have acknowledged that the privacy interests protected are as much those of the evaluator as those of the person being evaluated inasmuch as the evaluator generally makes his evaluation with the understanding that it will be kept confidential. OAG 79-348; OAG 86-15.
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 or professors made by their students are exempt from public inspection pursuant to KRS 61.878(1)(a).
As the City's auditor, Ms. Kalkhof occupies a position more closely akin to that of the rank and file public employees discussed in 92-ORD-1375 and earlier opinions. She is not "ultimately responsible for the management" of the City of Louisville. We fail to see the relevance of University of Kentucky v. Courier-Journal, supra, which dealt only peripherally with the privacy exception, and provided in broad terms for the release of records which are "of public or general interest." University of Kentucky, supra at 377. In
our view, the City's denial of Mr. Cullinan's request for Ms. Kalkhof's performance evaluations was entirely proper.
Mr. Cullinan may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Thomas Lukins
Assistant Director of Law
City of Louisville Department of Law
City Hall, Room 200
Louisville, KY 40202-2771
Hon. R. Keith Cullinan
Attorney at Law
One Corporate Plaza, 22nd Floor
220 W. Main Street
Louisville, KY 40202