NOT TO BE PUBLISHED
95-ORD-32
March 3, 1995
In re: James W. Hendrix/University of Kentucky
OPEN RECORDS DECISION
This appeal originated in a request to inspect twenty-eight public records relating, in general, to University of Kentucky personnel practices, which was submitted by Mr. James W. Hendrix, a professor of plant pathology in the College of Agriculture, to the University's custodian of records. Although the University released or otherwise made available twenty-one of these records, Mr. Donald B. Clapp, then custodian of records, denied seven of Mr. Hendrix's requests on various grounds. At issue in this appeal is his denial of Mr. Hendrix's request for a record identified as:
[T]hat portion of the Chancellor's recommendation to the President that shows the Chancellor's positive recommendation [relative to Mr. Robert Flashman's promotion with tenure by the Board of Trustees], and that shows the President's approval or concurrence with that recommendation.
Relying on KRS 61.878(1)(a) and (i), [1] Mr. Clapp advised Mr. Hendrix that the requested record "is a preliminary recommendation and/or memoranda in which opinions are expressed." Moreover, Mr. Clapp observed, disclosure of the contents of the record would constitute an unwarranted invasion of Mr. Flashman's personal privacy.
We are asked to determine if the University of Kentucky improperly relied on KRS 61.878(1)(a) and (i) in partially denying Mr. Hendrix's request. Although the University appears to have set forth, in good faith, a statutorily based denial of Part 20 of Mr. Hendrix's request, we find that its reliance on those exceptions was misplaced. Because Mr. Hendrix requested only that portion of the Chancellor's letter to the President which contains the recommendation itself, specifically excluding those portions containing opinion and evaluation, and because that recommendation was approved by the President and adopted by the Board of Trustees, that portion of the letter must be released. We reject the notion that release of this discreet portion of the letter would constitute a clearly unwarranted invasion of Mr. Flashman's privacy inasmuch as that portion of the letter does not contain opinion or evaluative comment, and the personnel action it documents has already been disclosed. Further disclosure would therefore not be clearly unwarranted.
It is generally recognized that records of an evaluative nature relating to public employees are exempt from public disclosure pursuant to KRS 61.878(1)(a), (i) and (j). [2]
OAG 77-394 (university professor); OAG 78-738 (university professor); OAG 79-348 (teacher); OAG 80-58 (policeman); OAG 82-204 (university professor); OAG 82-211 (university professor); OAG 86-15 (teacher); OAG 89-90 (teacher); OAG 91-62 (branch manager). These opinions were premised on the notion that an evaluation is a matter of opinion and does not represent any action on the part of the agency. KRS 61.878(1)(i) and (j). Accordingly, the only information to which the public is entitled is information relating to the action which the agency takes in light of the evaluation. We have also recognized that there are certain privacy interests at stake, including both the person being evaluated and the evaluator, since the latter typically makes his evaluation with the understanding that it will be kept confidential. OAG 79-348; OAG 86-15. It was upon this line of decisions that the University apparently relied in denying Mr. Hendrix's request. However, on the unique facts of this appeal, we believe that these opinions are not dispositive.
KRS 61.878(1)(i) excludes from the mandatory disclosure provisions of the Open Records Act, "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]" This exception is intended to protect the integrity of the agency's internal decision making process by encouraging the free exchange of opinions and recommendations. It has thus been interpreted to authorize the nondisclosure of preliminary recommendations of personnel within the agency. The purpose underlying this exemption is discussed at page 4 of OAG 88-85 wherein this office observed:
[R]ecommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
If, however, predecisional documents are incorporated into final agency action, they are not exempt.
This dichotomy is best illustrated in City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982). In that opinion, the Kentucky Court of Appeals held that the investigative files of the City police department were exempt from public disclosure as preliminary documents. The court reasoned:
It is the opinion of this court that subsections (g) and (h) [until recently codified as subsections (h) and (i) and now codified as subsections (i) and (j)] . . . protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is to be taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.
City of Louisville, supra at 659. In contrast, predecisional documents which are incorporated by the agency into its final action forfeit their preliminary status and are thereafter subject to inspection.
Mr. Hendrix requested only that portion of the Chancellor's letter to the President reflecting his recommendation relative to Mr. Flashman's promotion. He did not request the evaluative comments supporting that recommendation. The Chancellor's recommendation was then approved by the President, and transmitted to the Board of Trustees, which took final action by approving the President's recommendation. The Chancellor's recommendation was adopted by the Board in its final action approving Mr. Flashman's promotion, and thus forfeited its preliminary character.
Because Mr. Hendrix requested only that portion of the Chancellor's letter to the President containing his recommendation, without supporting evaluative comments, we do not believe that release of the redacted letter would constitute a clearly unwarranted invasion of personal privacy. In Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the Kentucky Supreme Court articulated a clear test for analyzing the propriety of invoking the privacy exception. At pages 327 and 328, the court observed:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover,the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
Those "antagonistic interests" are characterized as the public's interest in knowing whether its agencies are properly executing their statutory functions and its public servants are serving the public, and the individual's or individuals' interest in the disclosure of records which touch upon the intimate or personal features of their lives. Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Board of Examiners, supra at 328.
Although we cannot imagine what possible interest the sanitized letter holds for Mr. Hendrix, since it reveals nothing more than a recommendation for a personnel action which has already been disclosed, it cannot be said to implicate a significant privacy interest. The University's established promotion and tenure procedures are not shrouded in secrecy. It is commonly understood that the Chancellor makes his recommendation to the President who, if he concurs, submits an affirmative recommendation to the Board of Trustees which approves or disapproves the recommendation. See, "Procedural Flow Chart for Proposals to Promote and/or Grant Tenure in the University System" (AR IT- 1.0-1, 1/18/88, page XIV-I). The Chancellor's expectation of confidentiality in his recommendation is thus markedly reduced, particularly where that recommendation is adopted by the President and Board. Moreover, the position Mr. Flashman now holds in the University is no mystery. Mr. Flashman does not work in secret. Since the portion of the record sought reveals nothing more than the fact that Mr. Flashman was recommended for promotion, and Mr. Flashman was in fact promoted, we do not believe that either his privacy interests or those of the Chancellor are superior to the admittedly minimal public interest in disclosure of a record containing information already known. Pursuant to KRS 61.878(4), the University is obligated to redact all exempt information of an evaluative nature from the Chancellor's letter to the President, and release the nonexempt portion, specifically, that portion which reveals the recommendation which was subsequently adopted.
We do not, in so holding, establish a rule of general application vis-a-vis proposals to promote or grant tenure. Nor do we depart from any opinion or decision previously issued by this office. We continue to ascribe to the view that a public employee's right of privacy in evaluative records, and that of the evaluator, is superior to the public's interest in disclosure, and that what the public is entitled to know is what action is taken in light of the evaluation. Our decision is limited to the facts presented in this case.
The University of Kentucky and Mr. Hendrix may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
res/1656
Distributed to:
Mr. George DeBin
Official Records Custodian
11 Administration Building
University of Kentucky
Lexington, KY 40506-0032
Mr. James W. Hendrix
Professor, College of Agriculture
University of Kentucky
S-305 Agricultural Science Building - North
Lexington, KY 40546-0091
[1]KRS 61.878(1)(i) was recodified in July, 1994, and now appears at KRS 61.878(1)(j).
[2]Any doubts as to a public employee's access to his or her own personnel records, and in particular, records of an evaluative nature, were eliminated by the 1992 General Assembly. KRS 61.878(3) was amended in that legislative session, and now 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. Mr. Hendrix did not request his own personnel record, but that of a colleague.