NOT TO BE PUBLISHED
February 20, 1996
In re: Michael R. Timmerman/Jefferson County Police Merit Board
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Jefferson County Police Merit Board's denial of Michael R. Timmerman's July 6, 1995, request to inspect and copy all records, materials, and papers held by the Jefferson County Police Depart[ment] and the Jefferson County Police Merit Board, relating to, concerning, discussing, and naming me . . . [and] each time I have applied for the Jefferson County Police Department. On behalf of the Merit Board, Andy Latkovski, Secretary/Examiner, responded as follows to Mr. Timmerman's request on July 19, 1995:
As you may recall, you signed the enclosed `Disclosure and Release Form' regarding access to all tests results, interpretations and data generated during your psychological evaluation. Since this information resulted in your non-selection, we will not release same based upon the enclosed document.
The referenced document is a disclosure and release form, signed by Mr. Timmerman in which he waive[s] any right . . . to know test results, interpretations made, and access to the original data from which final judgments have been made. Mr. Timmerman relies on 95-ORD-84 and 95-ORD-87 to support his position that the Merit Board is obligated to release all records relating to his application to the Jefferson County Police Department.
In a letter to this office, Larry C. Ethridge, counsel for the Merit Board, elaborated on the Board's position. He explained:
[T]he psychological testing conducted on behalf of the Jefferson County Police Department is provided by an outside provider, Law Enforcement Psychological Services, Inc. In order to protect this entity from third party liability, applicants are required to sign the . . . `Disclosure and Release Form,' prior to submitting to the psychological testing component of the selection process. . . . Applicants thus release the provider and its agents `from all liability or damage claims which may result from their furnishing data, opinions and recommendations based upon the psychological evaluation.' In the instant case, Mr. Timmerman was denied access to this documentation based on his release, and he was informed that the psychological component of the testing process resulted in his non-selection.
Mr. Ethridge distinguished the instant appeal from the circumstances which gave rise to this office's decision in 95-ORD-84, also filed by Mr. Timmerman, and involving his request for background information gathered by the Kentucky State Police when he applied for a position with the force. In that decision, we held that pursuant to KRS 61.884 and KRS 61.878(3), he was entitled to inspect and copy any records regarding his application, including background investigation materials. Mr. Ethridge argues that because Mr. Timmerman signed the disclosure and release form, waiving any right or claim to obtain psychological test results, that decision is inapposite. In addition, Mr. Ethridge questions Mr. Timmerman's reliance on 95-ORD-87, in which this office held that a public agency cannot properly require its employees to forfeit their right of access to public records under the Open Records Act by signing an agreement waiving the right of inspection as a precondition to being considered a candidate for promotion. He argues that the analogy to release of data to employees in a promotional process is flawed involving far different types of information and the vast difference in duties owed by an employer to its employees as opposed to job applicants.
We are asked to determine if the Jefferson County Merit Board violated provisions of the Open Records Act in denying Mr. Timmerman's request. For the reasons set forth below, and upon the authorities cited, we conclude that the Merit Board's response was both procedurally and substantively deficient.
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.
To the extent that the Jefferson County Police Merit Board failed to respond within three business days to Mr. Timmerman's request, its response was procedurally deficient. Moreover, because the Merit Board failed to cite the specific exception which it believed authorized the withholding of the record or records requested, it violated KRS 61.880(1). We urge the Merit Board to review the cited provision to ensure that future responses conform to the Open Records Act.
Turning to the substantive issues in this appeal, we find that records held by the Jefferson County Police Merit Board, and relating to psychological testing on applicants to the police force, although they may be generated by an outside provider, are public records within the meaning of KRS 61.870(2), and are therefore governed by the Open Records Act. KRS 61.870(2) defines the term public record as all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. It is undisputed that the Jefferson County Police Merit Board is a public agency for purposes of the Act. Records relating to the psychological testing of applicants are public records insofar as they are used by, and presumably in the possession of, the Merit Board. The only remaining question, then, is whether they fall within the parameters of any of the exceptions authorizing nondisclosure.
The Merit Board, which clearly has the burden of proof in sustaining its denial of Mr. Timmerman's request pursuant to KRS 61.880(2)(c), invokes no exception authorizing nondisclosure. Instead, the Board argues that he forfeited any right or claim to inspect the records relating to his application to the police department when he signed the disclosure and release form. This is not a proper basis for denial under the Open Records Act, and we are not persuaded by this argument. In our view, resolution of this appeal turns on our earlier decisions in 95-ORD-84 and 95-ORD-87.
In 95-ORD-84, a copy of which is attached hereto, and incorporated by reference, this office held that an applicant for employment with the Kentucky State Police was entitled to review records regarding his application, including preliminary and other supporting documents that relate to him, pursuant to KRS 61.878(3). That statute provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
This provision has been construed to give an applicant for public employment a broad right of access to records relating to him. See e.g., 95-ORD-37; 95-ORD-97. Under the mandate of this statute, Mr. Timmerman, who is, or was, clearly an applicant for employment, is entitled to review any existing records generated in the application process which relate to him. Under KRS 61.878(3), the Merit Board owes the same duty to a current employee as it owes an applicant for employment with respect to the right to inspect public records.
Mr. Ethridge next argues that Mr. Timmerman forfeited any such right when he signed the disclosure and release form. This office has soundly rejected this argument. In 95-ORD-87, a copy of which is also attached hereto, and incorporated by reference, we held that the existence of a release of information form, signed by the requester, had no bearing on the issue of the propriety of nondisclosure of records relating to him. At page 9, we reasoned:
This office has consistently recognized that a public agency can promise confidentiality as far as the permissive exemptions permit, and such a promise should be honored. OAG 83-256, p. 4. Stated alternatively, an agreement to maintain confidentiality need not be honored if it is inconsistent with the Open Records Act. OAG 88-1; see also, OAG 92-149. Because we have determined that these records are not exempt per KRS 61.878(1)(a) or KRS 61.878(1)(l), the confidentiality provision contained in the release of information form is inconsistent with the Open Records Act, and cannot be honored. In our view, it is improper for a public agency to require its employees to forfeit their rights under the Act by signing an agreement waiving the right of inspection as a precondition to being considered a candidate for promotion.
We believe that this holding can properly be extended to the present appeal, despite the fact that Mr. Timmerman is an applicant, and not an employee. KRS 61.878(3) affords him the same right of access. Accordingly, we find that the Jefferson County Police Merit Board improperly denied Mr. Timmerman's request, and should immediately make arrangements for him to inspect, and, at his option to copy, the disputed records.
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.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Jefferson County Police Merit Board
Louisville, Kentucky 40202-3305
Michael R. Timmerman
1001 Perthshire Lane, #3
Louisville, Kentucky 40222
Larry C. Ethridge
Mosley, Clare & Townes
The Hart Block Building
730 West Main Street
Louisville, Kentucky 40202-2653