NOT TO BE PUBLISHED
June 12, 1996
In re: Sean C. Seales/Jeffersontown Police Department
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Jeffersontown Police Department's partial denial of Mr. Sean Seales's open records request to review certain records of the Department.
By letter dated March 28, 1996, Mr. Seales requested copies of the following documents relevant to this appeal:
2. All training records and disciplinary records pertaining to all Jeffersontown Police Department Field Training Officers or sergeants, who have evaluated me during my employment with the Jeffersontown Police Department.
5. All recruit evaluations on Jeffersontown Police Recruit Officers, or lateral transfers, in the past 10 years, who averaged an overall score of 5 or less during week 13 or 14 of the Field Training and Evaluation Program.
6. All recruit evaluations on Jeffersontown Police Recruit Officers, or lateral transfers, in the past 10 years, who received a grade of 3 or less during any part of the Field Training and Evaluation Program.
By letter dated April 2, 1996, in response to being denied the records requested in 2, 5, and 6, referenced above, Mr. Seales submitted a second request, in which he states:
I continue to request the unedited documents listed in items 2, 5, and 6. I now additionally ask for the documents listed in items 2, 5, and 6 with the names of the evaluated and disciplined individuals blacked out, to preserve their confidentiality.
By letter dated April 3, 1996, Colonel Fred L. Roemele, Chief of Police, Jeffersontown Police Department, denied Mr. Seales's request, stating:
This is to notify you, pursuant to KRS 61.880(1) that the Jeffersontown Police Department has denied your request of March 28, 1996 and April 2, 1996 for inspection of all recruit and lateral transfer evaluation documents for the past ten years.
The denial of your request as stated in OAG 87-64; the City may exclude from public inspection memoranda involved in preliminary intra-office communications setting forth opinions, observations and recommendations of departmental personnel and do not represent the department's final decision on a matter.
By follow-up letter, dated April 8, 1996, Chief Roemele informed Mr. Seales that, upon advice of the Jeffersontown City Attorney, his request relevant to items 2, 5, and 6, set out above, was denied for the following reasons:
The denial of request two (2), five (5) and six (6) are predicated upon the exceptions set forth in KRS 61.878(1)(a).
The Supreme Court of Kentucky has recognized the necessity of a case by case weighing of the antagonistic interest between public disclosure and the privacy exemption, and found the individuals whose personnel records are sought to have standing to prevent disclosure, (see: Kentucky Board of Examiners of Psychologists v. Courier-Journal & Lou. Times, Ky., 826 S.W.2d 327, and Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575.
Mr. Seales' remedies are provided in KRS 61.880(2)(a) and 61.882.
Accordingly, it remains my opinion that the privacy rights of the individuals should outweigh the disclosure requirement until at least a point in time where the Attorney General opines differently BASED UPON THE SPECIFIC FACTS OF THIS REQUEST, and the affected officers are afforded the opportunity to be heard.
We are asked to determine whether the Jeffersontown Police Department's denial of Mr. Seales's request was consistent with the Open Records Act. For the reasons which follow, we conclude that the Department's denial was consistent in part and inconsistent in part with the Act.
KRS 61.878(1)(a) 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. We again affirmed this position in 94-ORD-132, concluding that the evaluation of a chairman of a university department, although of great public interest, could properly be withheld pursuant to KRS 61.878(1)(a) because the chairman's privacy interests were superior to the public's interest in disclosure.
As noted, this office has consistently recognized that an employee has a cognizable privacy interest in records of an evaluative nature. In general, and based on reasoning set forth above, this office has held that interest is superior to the public's interest in disclosure. Although an argument can be made that disclosure of recruit evaluations will serve the public's interest by facilitating public oversight of agency action, we believe that the public's interest in disclosure of the recruit evaluations on Jeffersontown Police Recruit Officers is outweighed by the officers' privacy interest. Accordingly, we conclude that the Department properly withheld from disclosure the recruit evaluations requested in items 5 and 6.
However, we conclude that the Department's response to item 2 of the request was inconsistent with the Open Records Act. KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Denial of an open records request must be articulated in terms of the requirements of the statute. The custodian of records thus has the burden of justifying the withholding of a record by reference to the appropriate exception, and by briefly explaining how it applies to the record withheld. 94-ORD-35.
The Jeffersontown Police Department's response is deficient in that, although it cites KRS 61.878(1)(a) as the specific statutory basis for withholding of the records requested in item 2, it fails to give a brief explanation how the exception applies to the training records and disciplinary records withheld. Under the Open Records Act, the agency must sustain its burden of establishing that the requested record falls within an exception of the Open Records Act which authorizes nondisclosure. KRS 61.880(1). Moreover, the response does not address that portion of the request for these records with the names of the evaluated and disciplined individuals blocked out. Procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
Disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know. 96-ORD-87. In analyzing the propriety of release of records relating to public employee discipline under KRS 61.878(1)(i) and (j), the preliminary documents exceptions, the courts and this office have consistently recognized that [d]isciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know. OAG 88-25, p. 3; see also, City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1983); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); Kentucky Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 324 (1992); 95-ORD-47.
In a seminal opinion addressing the applicability of these exceptions to such records, the Kentucky Court of Appeals observed, The public upon request has a right to know what complaints have been made [against a public agency employee] and the final action taken thereupon. City of Louisville, supra at 660. Unless some other exception to public inspection applies, public agencies are obligated to disclose records reflecting final agency action, the complaints which initially spawned the action, and any investigative materials which are adopted by the agency as part of its final action.
Nor is disclosure of such record, in general, prohibited by KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. In OAG 91-41, this office stated:
Public service is a public trust. When public employees have been disciplined for matters related to the performance of their employment . . . this office has consistently held that the public has a right to know about the employee's misconduct and any resulting disciplinary action taken against the employee.
The Jeffersontown Police Department's response does not articulate a rationale that release of the training records or the disciplinary records requested would constitute a clearly unwarranted invasion of personal privacy superior to the public's right to be informed as to a public employee's job performance and what a public agency is doing in regard to the public's business. Accordingly, we conclude that withholding disclosure of the training records and the disciplinary records was inconsistent with the Open Records Act.
Accordingly, absent a brief explanation as to how the cited exception upon which the agency is relying applies to the records withheld in item 2, we are left with no alternative but to direct the release of those requested records to Mr. Seales. Our decision is limited to the facts presented in this appeal and turns on the public agency's failure to comply with the procedural requirements of KRS 61.880(1) and sustain its burden of proof to justify the withholding of a public record.
A party aggrieved by this decision may appeal it 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 proceeding.
A. B. CHANDLER III
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Sean C. Seales
2106 Ann Marie Drive
Louisville KY 40299
Jeffersontown Police Department
10410 Taylorsville Road
Jeffersontown KY 40299
Fred E. Fischer
Fischer and Greene
713 West Main Street
Louisville KY 40202