NOT TO BE PUBLISHED 

March 12, 1993

93-ORD-32

IN RE: William H. Hollander/Kentucky Lottery Corporation

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Kentucky Lottery Corporation relative to Mr. Tom Loftus's February 4, 1993, request to inspect certain records in its custody. Those records are identified as the current salary, current title, and date of hire of nineteen named employees of the Corporation. In addition, Mr. Loftus asked to inspect "the job applications and any other records within your files which would list the references and job experience of these employees." Mr. Loftus is the Courier-Journal's Frankfort Bureau Chief, and his request was made under the Kentucky Open Records Act.

In a letter dated February 4, 1993, Mr. Keith B. Hunter, General Counsel for the Lottery Corporation, partially denied Mr. Loftus's request. Although he released a schedule setting forth the current salary, title, and date of hire of the employees identified in Mr. Loftus's letter, he refused to disclose their job applications and other documents containing references and job experience. Relying on KRS 61.878(1)(a), he maintained that disclosure of such information would constitute a clearly unwarranted invasion of personal privacy.

On behalf of his client, The Courier-Journal, Mr. William H. Hollander appealed to the Attorney General, pursuant to KRS 61.880(2), the Lottery Corporation's partial denial of Mr. Loftus's request. Mr. Hollander notes that since 1989, the Attorney General's Office has held that the inspection of employment applications, resumes, and records of educational qualifications of public employees does not constitute a clearly unwarranted invasion of personal privacy. Citing OAG 89-90, OAG 91-155, and OAG 92-59, he contends that these opinions are dispositive of the present appeal.

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We are asked to determine if the Kentucky Lottery Corporation properly relied on KRS 61.878(1)(a) in partially denying Mr. Loftus's request. For the reasons set forth below, we conclude that the Lottery Corporation's reliance on the privacy exception in denying Mr. Loftus access to those portions of the employees' job applications or other documents reflecting job experience and the names of their references was misplaced. Mr. Hunter should immediately make arrangements for Mr. Loftus to review these portions of the job applications and related documents. However, we concur with Mr. Hunter in his view that the release of the phone numbers, addresses and relationship to applicant of persons named as references would constitute a clearly unwarranted invasion of personal privacy, and affirm the Lottery Corporation's decision to withhold this information. Letters of reference, if implicated by Mr. Loftus's request, may also be withheld pursuant to KRS 61.878(1)(h).

This Office has, since 1989, consistently recognized that the inspection of the personnel records of public employees, such as applications for employment and resumes, which contain relevant prior work experience and educational qualifications, does not constitute an invasion of privacy. OAG 89-90; OAG 90-113; OAG 91-48; OAG 91-155; OAG 91-176; OAG 91-202; OAG 92-59; OAG 92-85. These opinions are premised on the idea that a person does not typically work, or attend school, in secret, and that therefore the employee's privacy interest in such information is outweighed by the public's right to know that that employee is qualified for public employment. Thus, in OAG 89-90, at p. 8, we observed:

We believe that these opinions are dispositive of that portion of Mr. Loftus's request relating to job applications and other documents, to the extent that they reflect prior work experience reasonably related to qualifying for public employment.

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Nevertheless, we also concluded in OAG 89-90 that information on an application or resume that is of a personal nature, within the meaning of KRS 61.878(1)(a) may be separated and redacted in accordance with KRS 61.878(4). Such information includes, but is not limited to, an employee's home address, social security number, and medical information. Under this line of reasoning, the Lottery Corporation may properly mask information of a personal nature which appears on the job applications of the nineteen named employees.

With respect to Mr. Loftus's request for references submitted by the employees, we find that the Lottery Corporation improperly relied on KRS 61.878(1)(a) in refusing to disclose this information. This Office has previously recognized that "a person's name is personal but it is the least private thing about him . . . . The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order (i.e., adoption records)." OAG 82-234, at p. 3. Although the public's interest in disclosure of the references submitted by a public employee is less compelling than its interest in knowing the employee's qualifications for public employment, we believe it is superior to the references' minimal privacy interest in their names. Accordingly, we find that the Lottery Corporation must release the names of references appearing on job applications and related documents, but may withhold information of a personal nature relative to the references, including but not limited to their phone numbers, addresses, and relationship to the applicant.

We do not mean to suggest that the Lottery Corporation must release letters of reference submitted on behalf of its employees. In OAG 91-48, we expressly declined to extend the reasoning of OAG 89-90 to letters of reference. There, we held that inspection of letters of reference could be denied pursuant to KRS 61.878(1)(h), which exempts from public inspection "correspondence with private individuals." Such letters are not "correspondence between two public officials on public business within the contemplation of the Act, and are therefore exempt." OAG 91-48, at p. 3.

We therefore direct the Lottery Corporation to release job applications and related documents of the nineteen named employees. The Corporation may redact any information of a purely personal nature appearing on the applications or related document, pursuant to KRS 61.878(4). The Corporation should also release the names of references appearing on these

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documents, but may, again, redact any information of a personal nature. The Corporation may also withhold letters of reference submitted on behalf of these employees pursuant to KRS 61.878(1)(h) and OAG 91-48.

The Lottery Corporation and Mr. Hollander may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

lil/272

Distributed to:

Hon. Keith B. Hunter

General Counsel

Kentucky Lottery Corporation

Two Paragon Center, Suite 400

6040 Dutchmans Lane

Louisville, Kentucky 40205-3271

Hon. William H. Hollander

Wyatt, Tarrant & Combs

Citizens Plaza

Louisville, Kentucky 40202

Mr. Tom Loftus

Frankfort Bureau Chief

The Courier-Journal

614-B Shelby Street

Frankfort, Kentucky 40601

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