May 11, 1994
IN RE: James W. Hendrix/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in a request for records submitted by Mr. James W. Hendrix, Professor of Plant Pathology at the University of Kentucky College of Agriculture, to the University's Custodian of Records, Mr. Donald B. Clapp. Mr. Hendrix requested access to the severable and nonexempt parts of Mr. Keith Schillo's merit salary evaluation of Mr. Davy Jones, an Associate Professor of Toxicology at the University. Specifically, Mr. Hendrix requested:
1. Purely factual statements or listings of regulations controlling the procedures to be used in the evaluation;
2. Purely factual statements or listings of regulations controlling the criteria to be used in the evaluation;
3. Purely factual records identifying the distribution of Mr. Jones's work assignments relative to the evaluation/C.V. or other listings of the work activities submitted by Mr. Jones relative to the evaluation;
4. Listing of Mr. Jones's work activities created by Mr. Schillo during his peer review analysis;
5. Conclusions of fact stated by Mr. Schillo following his peer review analysis;
6. Professional statements of professional opinion about Mr. Jones's work performance;
7. Personal statements of personal opinion about Mr. Jones's personal characteristics.
An Associate Professor of Animal Sciences at the University, Mr. Schillo's evaluation was apparently one of several letters of evaluation submitted to Mr. Jones's academic department chair by his peers in the course of his formal performance evaluation.
On behalf of the University, Mr. Clapp denied Mr. Hendrix's request, advising him that the evaluation "is a preliminary recommendation and a memorandum in which opinions are expressed . . . ." Relying on KRS 61.878(1)(a), (h), and (i), he explained that because the evaluation did not relate to Mr. Hendrix, "disclosure of [its] contents . . . would amount to an unwarranted invasion of personal privacy of both Dr. Schillo and Dr. Jones." In support of this position, Mr. Clapp cited OAG 91-128 and the 1992 amendment to KRS 61.878(3). He argued that by "enumerating 'evaluations' in that legislation, . . . the General Assembly . . . demonstrated that the Kentucky Open Records Act exemptions can and do generally apply to these types of evaluations when third parties request information about a faculty member or other employee . . . ."
Mr. Clapp noted, in passing, that since Mr. Hendrix was quoting verbatim from page one of the letter from Mr. Schillo to the Department Chair, he must already have a copy of the letter. He questioned why Mr. Hendrix would now use the Open Records Law to obtain a document already in his possession.
In his letter of appeal to this Office, Mr. Hendrix challenges the fundamental premise upon which the University's denial of his request is based. Contrary to Mr. Clapp's apparent position that Mr. Schillo's evaluation is a "seamless and unseverable whole," he maintains that the University is obligated to separate and make available for examination any parts which are not evaluative, or otherwise exempt, in character. It is his position that the University must release those parts of the document submitted by Mr. Schillo which are "final [and] factual," including "descriptions of rules and regulations of . . . UK[,] listings of job activities of Dr. Jones[,] listings of job assignments and supporting budgets for those activities[,] and findings of fact made by Dr. Schillo in
his capacity as a peer expert[,]" as opposed to those which are "preliminary expressions of opinion." In support of his position, Mr. Hendrix cites numerous state and federal cases, as well as several opinions of this Office.
Mr. Hendrix also rejects Mr. Clapp's argument that the inclusion of "evaluations" in the list of personnel records which must be disclosed to a public employee upon that employee's request found at KRS 61.878(3), demonstrates a legislative intent to exclude them from release "when third parties request information about a faculty member or other employee . . . ." He notes that records relating to compensation are also included in the list, but that this Office has consistently held that such records must be made available to third parties. In Mr. Hendrix's view, the notion that by including "evaluations" in KRS 61.878(3), the legislature intended to remove them from the application of the Open Records Law is without merit.
Finally, Mr. Hendrix questions the University's invocation of KRS 61.878(1)(a), the privacy exception, relative to this particular evaluation. He argues that the privacy exception cannot be invoked when the record was not created "under preconditions of confidentiality." Both Mr. Schillo and Mr. Jones, he notes, have been staunch advocates of openness in the peer review process. "[W]here a legitimate question is raised [about whether University faculty support a confidential peer review process], the agency has the obligation of inquiring to both individuals as to whether each actually desires the records to remain confidential . . . ."
Mr. Hendrix asks that this Office issue a decision declaring that the final and factual parts of the disputed documents are not exempt from inspection and must be released to him. In addition, he asks that we "find that there is a legitimate question as to whether either Dr. Schillo or Dr. Jones want any statements of professional or personal opinions in the evaluation to remain confidential from the public . . . ."
In a followup letter to this Office, Mr. Clapp responded to these arguments, observing:
The writer of this evaluation, Dr. Schillo, has denominated the record a "peer recommendation on merit evaluation." In the body of the first paragraph, Dr. Schillo
recounts that his "evaluation/recommenda-
tion" is submitted for use that is pre-
liminary to the formation of the final merit evaluation. Accordingly, the document is clearly a preliminary recommendation exempt under the law. KRS 61.878(1)(i).
Dr. Schillo states in his memorandum that "for ease of reference and access to this assessment/recommendation into distinct, easily severable sections printed on separate pages." He then lists seven parts of the evaluation.
Part 1 is Dr. Schillo's lay opinion of what laws, rules, court opinions, etc. he thinks that he is bound by. As such, his opinions are exempt from disclosure under KRS 61.878(1)(i) as a "preliminary memorandum in which opinions are expressed." Dr. Schillo is not a University policy maker and thus any opinions about those matters are clearly that, mere opinions.
Part 2 likewise is Dr. Schillo's opinion about which criteria he thinks that he is "legally compelled to use in this process." As an opinion, it is exempt under KRS 61.878(1)(i).
Part 3 is a "Faculty Merit Evaluation Report" and a "Distribution of Effort Agreement." On reflection, this document is probably not exempt, because if Dr. Hendrix had asked for either of those specific documents by name in a separate open records request, the University would have provided it. Accordingly, the University hereby complies with Dr. Hendrix's request to that extent by attaching those documents to his copy of this letter.
Part 4 is characterized by Dr. Schillo as "the objective outcome which necessarily follows as a direct consequence of cross-checking the factual list of
activities he [Jones] performed against established criteria of what activities he was expected to perform." Again, this listing is Dr. Schillo's opinion about whether certain of Jones's performances met certain criteria and as such is exempt.
Part 5 is characterized as "my professional (not personal) objective recommendation." Contrary to Dr. Schillo's statement that this is not his "opinion," in the body of that Part it is stated to be a "recommendation" and thus is exempt under KRS 61.878(1)(i) as a "preliminary recommendation."
Parts 6 and 7 clearly are listed as "opinions" and as such are exempted by the express terms of KRS 61.878(1)(i).
Mr. Clapp liberally quotes from a 1992 decision of this Office relating to performance evaluations of public employees in which we examined a number of opinions dealing with evaluations in light of the Kentucky Supreme Court's decision in Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), and generally reaffirmed our earlier position. In closing Mr. Clapp asserted:
In weighing the "privacy" interest involved here, the University believes that the balance clearly tips toward exclusion of what one professor opines about another's performance.
He urges this Office to issue a decision consistent with this view.
We are asked to determine if the University erred in denying Mr. Hendrix's request for the severable and nonexempt parts of Mr. Schillo's merit salary evaluation of Mr. Jones. For the reasons set forth below, we conclude that the University improperly denied parts one through four of the request, and that pursuant to KRS 61.878(4) it is obligated to separate the excepted material, and make the nonexcepted material available for examination. Our decision is, however,
limited to the unique facts of this appeal, and should not be interpreted as a departure from our earlier opinions.
This Office has traditionally taken the position that records relating to public employees which are of an evaluative nature are excepted from the general rule of public inspection by operation of KRS 61.878(1)(a), (h), and (i). OAG 77-394 (university professor); OAG 78-738 (university professor); OAG 79-348 (teacher); OAG 80-58 (policeman); OAG 82-204 (university professor); OAG 82-211 (university professor); OAG 86-15 (teacher); OAG 89-90 (teacher); OAG 91-62 (branch manager); 92-ORD-1375 (university professor); 94-ORD-54 (city auditor). These opinions were premised on the notion that an evaluation is a matter of opinion, and does not represent any action on the part of the agency. KRS 61.878(1)(h) and (i). Accordingly, the only information to which the public is entitled is information relating to the action which the agency takes in light of the evaluation. Moreover, we have recognized that the privacy interests protected by KRS 61.878(1)(a) are as much those of the evaluator as those of the person being evaluated, since the evaluator generally makes his evaluation with the understanding that it will be kept confidential. The only exceptions to this rule are those which have been recognized for evaluations relating to public officers who occupy leadership positions. OAG 90-1 (police chief); 92-ORD-1145 (school superintendent).
We do not depart from this view today. Rather, we find that on the unique facts presented by Mr. Hendrix, this well-entrenched principle provides only a partial resolution of his appeal. Mr. Schillo's performance evaluation of Mr. Jones contains a number of documents which cannot be characterized as "evaluative." We examine each part of the record.
Public, established laws and regulations used in the process.
This part of Mr. Schillo's memorandum consists of a series of state and federal citations, as well as University regulations, policy memoranda, and procedure documents by which Mr. Schillo believes he is bound in drafting his evaluation of Mr. Jones. As noted, the University treated this part of the evaluation as a preliminary memorandum containing an expression of lay opinion which is exempt from public inspection pursuant
to KRS 61.878(1)(i). That provision excludes from the mandatory disclosure provisions of the Open Records Law:
(i) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
While we concur with the University that the memorandum reflects Mr. Schillo's opinion on the relevant federal, state, and University laws and regulations governing the review process, we fail to understand how it can be characterized as preliminary. To what final action is the memorandum preliminary? Certainly, it is not preliminary to the chair's final formulation of Mr. Jones's merit salary rating. Nor is it preliminary to, but is instead adopted as the basis of, Mr. Schillo's memorandum. It discloses the parameters within which he intends to operate in preparing his evaluation of Mr. Jones, and is, to this extent, a final document. In our view, the rationale which underlies KRS 61.878(1)(i), to wit, protecting the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and ideas, would not be served by the withholding of this document. Compare, OAG 86-64; OAG 88-24; OAG 89-34; OAG 89-39; OAG 90-97; 93-ORD-26. Accordingly, the University must separate it from the excepted material submitted by Mr. Schillo, and make it available for examination by Mr. Hendrix.
Public, established criteria used in the process.
This part of Mr. Schillo's memorandum consists of a series of state law and regulations, as well as University "policy statements," setting forth the criteria for evaluation by which Mr. Schillo believes he is bound in assessing Mr. Jones. Based on the reasoning set forth above relative to "public laws and public regulations" for conducting evaluations, we conclude that this part of Mr. Schillo's evaluation of Mr. Jones must also be released. Again, we question whether this document can properly be characterized as preliminary insofar as it represents the author's view as to the applicable criteria for evaluation. As above, it is not preliminary to Mr. Jones's final merit salary rating. Pursuant to KRS 61.878(4), the University must separate it from the excepted material, and make it available for inspection.
Faculty Merit Evaluation Report/Distri-
bution of Effort Report.
This part of Mr. Schillo's evaluation consists of the distribution of effort agreement between Mr. Jones and the Dean/Vice Chancellor for Research and Graduate Studies, and a curriculum vita submitted by Mr. Jones. In subsequent correspondence with this Office, Mr. Clapp acknowledged that these documents are not exempt, and released them to Mr. Hendrix. Had Mr. Hendrix asked for either in a separate open records request, Mr. Clapp explained, the University would have released them.
Statement of activities prepared by Mr. Schillo.
This part of the evaluation is characterized by Mr. Schillo as an "objective . . . cross-check[ ]" between the list of activities performed by Mr. Jones, and documented in the Distribution of Effort Report, and "established criteria of expected activity." Based on the reasoning set forth in Parts One and Two above, we conclude that the University is obligated to separate this document from the excepted materials submitted by Mr. Schillo, and release it to Mr. Hendrix. It consists of little more than a side by side comparison of Mr. Jones's actual activities and the generic list of activities contained in the Distribution of Effort Agreement/Curriculum Vita.
PARTS FIVE, SIX, AND SEVEN
Recommendation based on Mr. Schillo's "objective . . . cross-check" of Mr. Jones's activities/Professional Evaluation/Evaluation of Personal Characteristics.
These documents constitute the core of the evaluation, and reflect Mr. Schillo's opinion about Mr. Jones's professional contributions and personal qualities, and his opinion on the rating Mr. Jones should receive based on these observations. In OAG 91-128, this Office acknowledged that there is a growing trend in the law favoring disclosure of peer review materials, typified by the United States Supreme Court's
decision in University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182, 107 L.Ed.2d 571, 110 S.Ct. 577 (1990). In that opinion, the Court balanced the competing interests of the university in insuring the proper functioning of the peer review process, and the victims of discrimination in uncovering abuses in institutions of higher learning, and held that a public university responding to an EEOC subpoena did not enjoy any privilege against disclosure of peer review materials relevant to charges of racial or sexual discrimination in tenure decisions. We expressly declined to adopt this position in OAG 91-128, choosing instead to "stand behind the breakwater the General Assembly has established." OAG 91-128, p. 7.
We reaffirm that position here relative to requests submitted by third parties for the peer review materials of their colleagues. The three documents identified in Parts Five through Seven of Mr. Hendrix's request are clearly evaluative in nature. We believe that the line of opinions cited above are dispositive of these parts of the appeal. Each contains Mr. Schillo's opinion relative to Mr. Jones's professional ability and personal qualities, and each is preliminary to the University's final action on his merit evaluation rating. Mr. Hendrix, and the public generally, are entitled to information relating to the action which the University took in light of the evaluations, to wit, the rating Mr. Jones received. Neither he nor the public is entitled to evaluative documents which are preliminary to that rating.
We emphasize that this decision is limited to the unique facts presented in this appeal. Although Mr. Clapp did not so state, we question whether this is the typical format employed by University employees in the peer review process. We would assume that in general peer review materials are exclusively evaluative, and that the additional materials submitted by Mr. Schillo represent the exception rather than the rule. Nevertheless, we concur with Mr. Hendrix in his view that the University cannot remove a "bundle" of documents which
are not evaluative from the application of the Open Records Law by designating the entire "bundle" an evaluation. The University is bound by KRS 61.878(4) to "separate the excepted and make the nonexcepted material available for examination."
With respect to Mr. Hendrix's request that we find that there is a "legitimate question as to whether either Mr. Schillo or Mr. Jones wish for these materials to remain confidential," we note that recent developments suggest, by inference, that parties affected by a decision of a public agency relative to the release of public records may be heard, if not in advance of the agency's decision, then certainly in court to contest the agency's decision. In Lauretta R. Beckham v. Board of Education of Jefferson County, Ky., 93-SC-967-I and 93-SC-968-DG (March 24, 1994), the Kentucky Supreme Court held that an affected party has standing in a court to assert a right to have documents excluded. The Supreme Court seemed to suggest that such litigation might be avoided by consultation with the affected parties. At footnote 2, the Court observed:
Reluctantly, we conclude that the Board decided to comply with the request. Without some assurance from the Board, appellants were without any alternative other than litigation. The Board could have prevented premature and ill-defined litigation by having been more definite with respect to the documents it believed should be released and those it believed were protected by KRS 61.878.
Beckham, supra slip op. at 4.
This appeal presents the converse of the facts in Beckham, supra. Here the question raised is whether the affected parties can assert a right to have documents released, in other words, whether they can waive their privacy right. While we cannot determine the subjective intent of Professors Schillo and Jones relative to the release of peer review materials in the context of an open records appeal, it may well be appropriate for the University to inquire in advance of
denying a request for those materials on the basis of KRS 61.878(1)(a). Certainly, such an inquiry would bear directly on the issue of whether release of the materials would constitute a clearly unwarranted invasion of personal privacy.
We decline to comment on Mr. Clapp's suggestion that Mr. Hendrix has inappropriately used the Open Records Law to acquire documents already in his possession. Nothing in that statute prohibits a party from seeking to obtain from an official source a document which he or she has unofficially obtained. This is not the most productive use of the Law, but it is a use which appears to be countenanced by the Law. As we observed at page 6 of 94-ORD-15, "We assume a modicum of good faith from both parties to an open records appeal: From the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." We urge the parties to bear this observation in mind in future open records exchanges.
Mr. Hendrix and the University 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. Donald B. Clapp
Vice President for Administration
and Official Records Custodian
University of Kentucky
104 Administration Building
University of Kentucky
Lexington, KY 40506-0032
104 Administration Building
University of Kentucky
Lexington, KY 40506-0032
Hon. James W. Hendrix, Professor
University of Kentucky
College of Agriculture
S-305 Agricultural Science Bldg., North
Lexington, KY 40546-0091