July 22, 1996

In re: Glen Jones/Justice Cabinet, Department of Criminal Justice Training


This matter comes to the Attorney General on appeal from the denial by the Department of Criminal Justice Training, Kentucky Justice Cabinet, of Mr. Glen Jones's open records request to inspect the following records:

The personnel files of all persons employed by the Department of Criminal Justice Training during the period January 1, 1992 through June 31, 1996. The documents contained in these files in which I am specifically interested are: 1) those documents which would indicate which employees received Distinguished Service Awards, or any similar types of pay increases, during fiscal years 1993 through 1996; and 2) the employee performance evaluations of these employees during the two year period prior to their receiving these awards.

Mr. Dennis Mills, Supervisor, Department of Criminal Justice Training, denied Mr. Jones's request, stating:

By memorandum dated July 1, 1996 you requested to review personnel records other than your own and more specifically, copies of employee performance evaluations other than your own. The records you request are excepted from Open Records requests by KRS 61.878 Section 1, a. Personnel evaluations have been held to represent opinions of the rater and are therefore not subject to Open Records requests.

In his letter of appeal, Mr. Jones argues that the Department's reliance upon KRS

61.878(1)(a) as a basis for denying his request to inspect the personnel evaluations is incorrect and that the Department failed to give a reason for denying that portion of his request to inspect personnel files to determine which employees had received Distinguished Service Awards or any similar types of pay increases. We are asked to determine whether the Department's denial was consistent with the Open Records Act. For the reasons which follow, we conclude that the Department's response was consistent in part and inconsistent in part with the Act.

KRS 61.878(1)(a) permits an agency to withhold “[public 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. 96-ORD-51. Thus, we conclude that the Department properly denied Mr. Jones's request to inspect the employee performance evaluations of certain employees contained in Department personnel files.

However, we conclude that the Department's response to that portion of Mr. Jones's request to inspect its personnel files to determine which employees had received Distinguished Service Awards or any similar types of pay increases was inconsistent with and in violation of the Open Records Act.

KRS 61.880(1) sets forth the duties and responsibilities of a public agency in responding to a request for access to documents made under the Open Records Act. That statute provides in part as follows:

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.

This office has stated on numerous occasions that the procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of a request to inspect public documents. Any public agency has the duty to respond to the request in writing within the statutorily mandated time frame. The agency has the burden of justifying the withholding of a record by references to the appropriate exception to public inspection and by briefly explaining how that exception applies to the particular record withheld. 95-ORD-159.

In the instant case, the Department's response was deficient in that it did not address Mr. Jones's request to inspect records in the agency's personnel files which reflected which employees received service awards or similar type pay increases. Having failed to do so, it did not sustain its statutory burden of proof.

Moreover, under Open Records provisions, there may not be a general or blanket denial of inspection of records contained in the personnel file of a public employee. OAG 89-90. A personnel file in most situations will contain some information subject to public inspection and some material which may be excluded from public inspection.

For example, an employee's P-1 is a document, which when approved, notifies the employee of an action affecting his or her status, pay, position, classification or other condition of employment. Portions of the P-1 contain information of a personal nature within the meaning of KRS 61.878(1)(a). Such information would include social security numbers and home addresses. This office has, however, consistently recognized that although a public employee is entitled to privacy in his or her personal life and off-duty activities, release of documents containing information which relates to the individual's public employment, such as name, position, work station, and salary, does not constitute an unwarranted invasion of privacy. 93-ORD-12.

KRS 61.878(4) provides:

If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.

When a public record contains information of an excepted and nonexcepted nature, the public agency must provide access to the nonexcepted material either by providing a copy of the record with the excepted material deleted, or by providing a list containing the nonexcepted information as derived from the records in its files. 93-ORD-59.

Accordingly it is the decision of this office that the Department's response to this portion of the request was procedurally and substantively deficient. Under KRS 61.878(4), the Department has the option of making the personnel files available for inspection and redacting any excepted material contained in the records, or preparing a list of the employees which received the relevant awards or pay increases. OAG 89-97. Both of these options satisfy the inspection requirements for requested records which contain both public and nonpublic information. The Department may exercise its discretion in selecting the method of making these requested records available for inspection.

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.







Distributed to:

Glen Jones

211 Samuel Ross Court

Richmond KY 40475

Dennis Mills, Supervisor

Justice Cabinet

Department of Criminal Justice Training

Kit Carson Drive

Richmond KY 40475-3137