TO BE PUBLISHED
96-ORD-1
January 9, 1996
In re: Rendell T. Butler/Department of Personnel
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Department of Personnel's denial of Rendell T. Butler's September 6, 1995, request for documents containing the “names of candidates who were on [the] same certificate . . . . Jeff Jones was hired from into [the] position [of] personnel program consultant, code 9365, grade 14.” On behalf of the Department of Personnel, Daniel F. Egbers denied Mr. Butler's request on September 6, advising him as follows:
The Department of Personnel takes the position that the decision of an employee or applicant to apply for a position is a personal and private matter not to be disclosed except upon order of a court. The fact of application and the documents assiciated [sic] with it is within the personal privacy exception in KRS 61.878(1)(a).
In support of this position, Mr. Egbers cited OAG 92-59.
The question presented in this appeal is whether the Department of Personnel violated provisions of the Open Records Act in denying Mr. Butler's request. For the reasons set forth below, and upon the authorities cited, we conclude that the Department properly denied Mr. Butler's request.
As Mr. Butler correctly notes, this is an issue of first impression for the Attorney General. We have, however, generally recognized that the applications of unsuccessful applicants for public employment are excluded from public inspection by operation of KRS 61.878(1)(a), permitting nondisclosure of records “containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” Thus, at page 8 of OAG 89-90 we observed:
[R]egarding current or former employees (as distinguished from applicants not selected or hired) inspection of information . . . [which appears on an application for public employment and which is] reasonably related to qualifying for a public position . . . does not involve the release of information of a personal nature such that public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy . . . .
In OAG 90-113, we expressly opined that applications and resumes submitted by unsuccessful applicants for public employment are exempt from inspection or copying under the Open Records Law pursuant to KRS 61.878(1)(a). See also, 95-ORD-38.
These opinions were premised on the reasoning found in Core v. United States Postal Service, 730 F.2d 946 (4th Cir. 1984). Holding that the Freedom of Information Act, 5 U.S.C.A. §552, compels disclosure of information pertaining to the employment histories of successful applicants for federal employment, but precludes disclosure of other applications, the Fourth Circuit Court of Appeals identified the privacy interests at stake. Recognizing that the identities of applicants selected for positions are known, and that disclosure that they wished to leave their former employment cannot embarrass them since this fact is also known, the court reasoned that the release of their applications “would cause but a slight infringement of their privacy.” Core at 948. Continuing, the court observed:
In contrast, the public has an interest in the competence of people the [federal government] employs and its adherence to regulations governing hiring. Disclosure will promote these interests.
Core at 948.
Turning to the issue of the unsuccessful applicants, the court concluded that “the balance tips the other way.” Core at 948. At page 949, the court stated:
In contrast to the lack of harm from disclosure of the applications of persons who are hired, disclosure may embarrass or harm applicants who failed to get a job. The present employer, co-workers, and prospective employers, should they seek new work, may learn that other people were deemed better qualified for a competitive appointment.
Although the court did not comment on it, the unsuccessful employees might also be embarrassed by disclosure that they wished to leave their present employment.
Against these significant privacy interests, the court weighed the minimal public interest in disclosure, observing:
Disclosure of the qualifications of people who were not appointed is unnecessary for the public to evaluate the competence of people who were appointed.
Core at 949. Indeed, the court noted, “comparisons of all applications may be misleading, because the appointments were made on the basis of both the applications and the interviews.” Core at 949. [1]
Neither the court in Core, nor this office, has addressed the propriety of disclosing the register upon which the names of applicants for public employment appear. The register is the eligible list for appointment to the classified service maintained by the commissioner of personnel. Individuals who wish to be considered for appointment, former employees who wish to exercise their re-employment rights, and current employees who wish to move into positions in different classes in the state personnel system through the Internal Mobility Program, and who pass the appropriate selection method, are placed on the register. KRS 18A.005(26) defines the term “register” as:
[A]ny official list of eligibles for a particular class and . . . placed in rank order according to the examination scores maintained for use in making original appointments or promotions to positions in the classified service[.]
Simply stated, an individual whose name appears on the register is, or has, expressed an active interest in seeking employment in the classified service. To the extent that release of the register will disclose the fact that those individuals wish to leave their current positions, and may be harmful to their careers if they are not selected for employment from the register, it implicates the same privacy interests as release of the applications of unsuccessful applicants. These privacy interests are weighty indeed.
The public interest supporting disclosure of the register, on the other hand, is minimal at best. Although inspection of the register may, in some remote fashion, facilitate public oversight of state hiring practices, and in particular, the statutory function performed by the commissioner of personnel relative to proper maintenance of the registers, it would not further the citizens' right to know what their government is doing in any meaningful way. Since, as the court noted in Core, appointments are made on the basis of applications, interviews, and other factors, disclosure of the register “would not in any real way subject agency action to public scrutiny.” Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 829 (1994). It is, instead, the public's interest in the competence of the individuals appointed, and the appointing agency's adherence to regulations governing hiring, that must be protected by inspection of public records. Unless disclosure sheds light on the agency's hiring decision, such records are of no legitimate interest to the public. Accordingly, we find that the privacy interest of individuals whose names appear on the register “substantially outweighs the negligible Open Records Act related public interest in disclosure,” and that “disclosure would constitute a clearly unwarranted invasion of personal privacy under KRS 61.878(1)(a).” Zink at 829, 830. We therefore affirm the actions of the Department of Personnel in denying Mr. Butler's request.
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.
A. B. CHANDLER III
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
aps/1202
Distributed to:
Daniel F. Egbers
Legal Counsel
Department of Personnel
Suite 516
200 Fair Oaks Lane
Frankfort, Kentucky 40601
Rendell T. Butler
500 Breckenridge Avenue
Frankfort, Kentucky 40601
[1] In Arizona Board of Regents v. Phoenix Newspapers, Inc., 167 Ariz. 254, 806 P.2d 348 (1991), the Arizona Supreme Court postulated yet another reason why disclosure of the identities of applicants would not serve the public interest. Recognizing that disclosure may be embarrassing and harmful to an applicant's career, the court noted that it might also prove detrimental to the hiring process, “resulting in lesser qualified, but thicker skinned, persons applying.” Arizona Board of Regents at 352. The court concluded that the public's interest in ensuring the state's ability to secure the most qualified applicants was more compelling than its interest in the names of all applicants.