NOT TO BE PUBLISHED
95-ORD-87
June 6, 1995
In re: Jerry E. Reynolds/City of Ft. Thomas
OPEN RECORDS DECISION
This appeal originated in the submission of a request for public records by Jerry E. Reynolds, a retired City of Ft. Thomas, Kentucky, police detective, to the City's Administrative Officer, Jeffrey S. Earlywine, on March 6, 1995. Mr. Reynolds, along with several other police officers, some retired and some still active, requested access to the civil service promotional examination for the position of sergeant conducted in March, 1982, including copies of the examination, answer sheets, and other materials used in conjunction with the test; psychological tests and evaluations of the candidates conducted by Dr. Michael F. Landwehr for the City, and the report he prepared in which he ranked the candidates based on these evaluations; and the release of information forms signed by the candidates in which they consented to undergo psychological evaluation, agreed to the release of the results to the mayor, safety committee, chief of police, and city administrator, but waived the right to inspect the results personally.
On behalf of the City of Ft. Thomas, Mr. Earlywine partially denied the request on March 9, 1995. Although he furnished Mr. Reynolds and the other officers with copies of the release of information forms which they signed in 1982, Mr. Earlywine denied their request for copies of the examination, answer sheets, and other materials used in conjunction with the test. He explained that the City of Ft. Thomas entered into a test security agreement with the testing company, Personnel Decisions, Inc., under the terms of which the City was required to return all test booklets and answer sheets. Accordingly, the City did not have custody of the requested records, and could not produce them.
With respect to the officer's request for psychologi- cal tests and evaluations of the candidates conducted by Dr. Landwehr, Mr. Earlywine asserted that these records were exempt per KRS 61.878(1)(a), the personal privacy exception, observing:
Disclosure of such confidential information could prove to be personally damaging to the individual and subject each candidate to unnecessary psychological harm and embarrassment. Such disclosure of sensitive information could adversely impact the individual subject to the evaluation, both personally and professionally.
In his view, release of those records would constitute a clearly unwarranted invasion of privacy. Moreover, Mr. Earlywine noted, the City is precluded from releasing the records by operation of KRS 61.878(1)(l), which incorporates KRS 422A.0507 (KRE 507), the psychotherapist-patient privilege. It was his position that the communications between Dr. Landwehr and the candidates for the position of sergeant were confidential, and therefore not subject to disclosure.
In his letter of appeal, Mr. Reynolds states that he has reason to believe that there were serious irregularities in the 1982 sergeant promotional exam. He asks that we determine whether the City properly denied his request for his own examination answer sheets and psychological evaluations. In addition, he asks whether he has a right to review all records in the City's custody which relate to his employment.
In a followup letter to this office dated March 27, 1995, Mr. Earlywine elaborated on the City's position. He reiterated that the examination and answer sheets "are not, and have not at any time subsequent to the test, been in the possession of the City. This information is strictly regulated by test manufacturers via a written security agreement to protect the integrity and validity of the test." Additionally, Mr. Earlywine reaffirmed that in the City's view release of psychological evaluations "would clearly constitute an invasion of personal privacy to the other individuals a party to Mr. Reynolds' request."
The question presented in this appeal is whether the City of Ft. Thomas violated the Open Records Act in partially denying Mr. Reynolds's request. For the reasons set forth below, we conclude that although the City properly denied his request for copies of examinations and answer sheets, insofar as it could not produce records which are not in its custody, it improperly denied his request for his own psychological evaluation and tests, insofar as the privacy interests implicated by release of the records are Mr. Reynolds's, as is the privilege. We do not address the open records question Mr. Reynolds poses relative to his employment records inasmuch as those records were not identified in his March 6, 1995, request, the City was not afforded an opportunity to respond, and the question is not ripe for review.
This office has consistently recognized that a public agency cannot afford a requester access to documents which do not exist or are no longer in its custody. In a long line of opinions issued by this office, we have held that such a request cannot be honored inasmuch as an agency cannot furnish access to documents which it does not have. OAG 83-11; OAG 87-54; OAG 88-5; OAG 88-44; OAG 91-112; OAG 91-203; 93-ORD-51; 95-ORD-58. Thus, a requester is entitled to nonexempt records that a public agency has created or that have come into its custody, and that it has retained, but the agency is not required to regain possession of a record to satisfy an open records request. Forsham v. Harris, 445 U.S. 169, 186, 100 S.Ct. 978, 987, 63 L.Ed.2d 293 (1980); Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 152, 100 S.Ct. 960, 969, 63 L.Ed.2d 267 (1980).
We have also recognized that it is not, in general, the Attorney General's duty to investigate in order to locate documents which the requester insists the agency has in its custody, but which the agency insists it does not have. As we observed at page 5 of OAG 86-35, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents or possible documents for the party seeking to inspect such documents."
The Kentucky Open Records Act was substantially amended in 1994. The General Assembly recognized "an essential relationship between the intent of [the Act] and that of KRS 171.410 to 171.740, dealing with the management of public records . . . ." KRS 61.8715. KRS 171.640 provides:
The head of each state or local agency shall cause to be made and preserved records containing adequate and proper documentation of the organizational functions, policies, decisions, procedures, and essential transactions of the agency and designed to furnish information necessary to protect the legal and financial rights of the government and of persons directly affected by the agency's activities. Such documentation shall be created, managed, and preserved in accordance with standards, rules and regulations prescribed by the department [for libraries and archives] under the provisions of KRS 171.410 and 171.740.
While we do not find, as a matter of law, that the City of Ft. Thomas violated the Open Records Act by failing to afford Mr. Reynolds access to the examination, answer sheets, and related materials, those records having been returned to the testing company per the security agreement executed by the City and the company, we believe that in light of this language, additional inquiry may be warranted. [1]
We have referred this matter to the Department for Libraries and Archives, Public Records Division, for a determination of whether the City of Ft. Thomas violated the provisions of Chapter 171, and in particular KRS 171.640, relative to its duty to manage and preserve records necessary to protect the legal and financial rights of persons affected by its activities.
Mr. Reynolds also requested access to records of the psychological tests and evaluations he underwent as a candidate for sergeant. The City responded that disclosure of these records would constitute a clearly unwarranted invasion of personal privacy, subjecting him to psychological harm and embarrassment. Moreover, the City argued, KRS 61.878(1)(l), [2] operating in tandem with KRS 422A.0507, the psychotherapist- patient privilege, prohibits inspection of these records. Finally, the City asserted, Mr. Reynolds forfeited any right he might have had to inspect the tests and evaluations when he signed the release of information form in 1982. We do not concur.
Among the documents which may be excluded from the mandatory disclosure provisions of the Open Records Law are:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
KRS 61.878(1)(a). 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 analyzed this exception at length. Acknowledging that the Open Records Law "exhibits a general bias favoring disclosure," Kentucky Board of Examiners, Id. at 327, the court formulated a balancing test to be used in assessing the propriety of an agency's invocation of the privacy exception. The Court reasoned:
[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.
Kentucky Board of Examiners, Id. at 327, 328. 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." Kentucky Board of Examiners, Id. at 328. The Supreme Court characterized these "antagonistic interests" 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 interest in the nondisclosure of records that touch upon the intimate or personal features of his or her life.
While we agree with the City of Ft. Thomas that an individual has a privacy interest in psychological tests and evaluations which he has undergone, indeed a very compelling interest, [3] where, as here, he requests his own evaluations and tests, and indicates that he intends to share them with other individuals, that privacy interest is markedly reduced, if not altogether eliminated. Accordingly, we are not persuaded that KRS 61.878(1)(a) authorizes nondisclosure of these records.
Nor do we believe that KRS 61.878(1)(l), operating in tandem with KRS 422A.0507, permit the City to withhold from Mr. Reynolds his psychological evaluations and tests. The general rule of privilege applicable to psychotherapists and their patients provides:
A patient, or his authorized representative, has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications, made for the purpose of diagnosis or treatment of his mental condition, between the patient, the patient's psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist, including members of the patient's family.
KRS 422A.0507(2). There are a number of exceptions to this general rule of privilege, none here relevant. A communication is confidential:
[I]f not intended to be disclosed to third persons other than those present to further the interest of the patient in the consultation, examination or interview, or persons reasonably necessary for the transmission of the communication, or persons who are present during the communication at the direction of the psychotherapist, including members of the patient's family.
Because privileges, in general, "contravene the fundamental principle that 'the public has a right to every man's evidence,'" the following rule of construction is said to apply:
[P]rivileges . . . must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.
Trammel v. U.S., 445 U.S. 48, 50, 100 S.Ct. 906, 912, 63 L.Ed.2d 186, 195 (1980), cited in R. Lawson, The Kentucky Evidence Law Handbook §5.05, at 226 (3d ed. 1993). A privilege must therefore be "given no greater application than is necessary to further its objectives." Id. at §5.10, p. 232.
The psychotherapist-patient privilege is premised on the notion that "the capacity of psychotherapists to help their patients is far more dependent upon full disclosure than is the capacity of physicians to help their patients." Id. at §5.20, p. 260. It is placed "upon the same basis as that provided by the law between attorney and client." Southern Bluegrass Mental Health v. Angelucci, Ky.App., 609 S.W.2d 931, 933 (1980); Matthews v. Commonwealth, Ky., 709 S.W.2d 414 (1985). The privilege belongs to the patient, [4] and may be waived by the patient. With respect to waiver, KRS 422A.0509 states:
A person upon whom these rules confer a privilege against disclosure waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the privileged matter. This rule does not apply if the disclosure itself is privileged. Disclosure of communications for the purpose of receiving third-party payment for professional services does not waive any privilege with respect to such communications.
Thus, disclosure of confidential communications to third parties by the holder of the privilege constitutes waiver of the psychotherapist-patient privilege.
Because Mr. Reynolds is the holder of the privilege, the City of Ft. Thomas cannot assert it to prevent him from inspecting the tests and evaluations which he underwent in 1982 as a candidate for sergeant. If he then shares the information contained in those documents with third parties, for example, his fellow officers, he waives the privilege with respect to further release of those records since disclosure of a confidential communication is inconsistent with the privilege. It is therefore the opinion of this office that although the City of Ft. Thomas argued, in good faith, that the requested records were exempt from disclosure, the City improperly relied on KRS 61.878(1)(l) and KRS 422A.0507 in denying Mr. Reynolds access to these records.
We do not believe that the release of information form signed by Mr. Reynolds has any bearing on the propriety of the nonrelease of these records. 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.
Mr. Reynolds next asks about his "rights to view and have copies of all the papers held by [his employer], the City of Ft. Thomas, Ky., that relates [sic] to [his] employment." As Mr. Earlywine correctly observes, "This information was not requested in Mr. Reynolds' written submission to this office dated March 6, 1995." The issue is not, therefore, ripe for review, and we decline to issue a decision relative to these records.
Mr. Reynolds and the City of Ft. Thomas may challenge this decision 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 proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
res/377
Distributed to:
Mr. Jeffrey S. Earlywine
City Administrative Officer
City of Ft. Thomas, Kentucky
130 North Ft. Thomas Avenue
Ft. Thomas, KY 41075
Mr. Jerry E. Reynolds
23 Mayfield
Ft. Thomas, KY 41075
Mr. Richard Belding, Director
Public Records Division
Department for Library and Archives
300 Coffee Tree Road
P.O. Box 537
Frankfort, KY 40602-0537
[1]Because the City no longer has possession of the examinations, answer sheets, and related materials, we do not address the applicability of KRS 61.878(1)(g), authorizing nondisclosure of:Test questions, scoring keys, and other examination data used to administer a licensing examination, examination for employment, or academic examination before the exam is given or if it is to be given again.
[2]KRS 61.878(1)(l) permits a public agency to withhold:Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
[3]See, e.g., Kentucky Board of Examiners, at 328, stating, "[W]e believe the very existence of the confidentiality statute [codifying the psychologist-client privilege] is significant as demonstrating a recognition . . . of the especially personal, private nature of the relationship."
[4]KRS 422A.0507(2) thus provides, "A patient . . . has a privilege to refuse to disclose . . . confidential communications . . . ."