NOT TO BE PUBLISHED
March 20, 1995
In re: Lee A. Jackson/Department of Personnel
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky Department of Personnel's denial of Mr. Lee A. Jackson's request, on behalf of the Kentucky Association of State Employees, for:
1. [A] copy of any and all memorandum and/or letters from the Transportation Cabinet and/or the Department of Highways District 12 notifying the Commissioner of any vacant Highway County Crew Foreman (1061) positions in Pike County with an effective date of 04-01-94 to date.
2. [A] copy of any and all Request for Register Certification to the Commissioner from the Transportation Cabinet and/or the Department of Highways District 12 for Highway County Crew Foreman (1061) with an effective date of 04-01-94 to date.
3. [A] list of the names of any and all employees certified through selective certification for the position of Highway County Crew Foreman (1061) with an effective date of 04-01-94 to date.
On behalf of the Department of Personnel, Daniel F. Egbers, Managing Attorney, denied Mr. Jackson's request as to request number 1 stating the agency had no letters or memoranda that met the description of those records requested. The agency properly denied access to records it did not have. This office has consistently held that if the agency in fact does not have the documents requested or they do not exist, a response to that effect is proper. See 94-ORD-65, at page 3 (copy enclosed).
For the same reason, the agency's response denying Mr. Jackson's request number 3 for a list of names of any and all employees certified through selective certification for the position of Highway County Crew Foreman was proper. Mr. Egbers, in his response, stated that agency records showed no selective certifications for the position of Highway County Crew Foreman.
It is further the decision of this office that the agency also properly denied Mr. Jackson's request to inspect a copy of any and all requests for register certification to the Commissioner from the Transportation Cabinet and/or the Department of Highways District 12 for Highway County Crew Foreman.
Mr. Egbers, in his response, declined to provide the names and addresses of applicants for these state positions which were on the requested register certificate. He stated the information requested was protected by the privacy exception in KRS 61.878(1)(a) because applicants for positions have an expectation that the fact they are seeking a position will be protected. Mr. Egbers explained this is so because of the stigma that may apply to an unsuccessful applicant and out of concern that a current employer might retaliate against an applicant if he knew he was seeking other employment.
This office has previously opined that applications for employment, by those who are hired, are subject to inspection. We emphasized the fact that applications were available for review after the applicant had been hired, with the exception of any personal information which appears on them. OAG 89-90; OAG 92-59 (copies enclosed). Again, in OAG 90-113 (copy enclosed), we held that applications from unsuccessful applications for state jobs are exempt from inspection under the Open Records Law pursuant to KRS 61.878(1)(a).
Moreover, information on applications that is of a personal nature within the meaning of KRS 61.878(1)(a) may be redacted and withheld from disclosure. 93-ORD-32 (copy enclosed); OAG 89-90.
In his response, Mr. Egbers informed Mr. Jackson that the register certificate in redacted form would be available for inspection should he want it.
Mr. Jackson may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. 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.
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Hon. Dan Egbers, Managing Attorney
Department of Personnel
200 Fair Oaks Lane, Suite 516
Frankfort, KY 40601
Mr. Lee A. Jackson, President
Kentucky Association of State Employees
115 East 2nd Street, #2
Frankfort, KY 40601