NOT TO BE PUBLISHED
96-ORD-33
February 1, 1996
In re: Verlin E. Flaherty/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 partial denial of Verlin E. Flaherty's June, 1995, request for access to, and copies of, various records pertaining to tests scores and examnation results for applicants to the Jefferson County Police Department from 1975 to present. In an undated request, Mr. Flaherty asked to inspect and copy:
1. All written test scores of all applicants for the Jefferson County Police Department, by race and gender if possible, since 1975;
2. All oral examination results of all applicants for the
Jefferson County Police Department, by race and gender if possible, since 1975;
3. All physical examination results, including fat content
tests, of all applicants for the Jefferson County Police
Department, by race and gender if possible, since 1975;
4. All psychological evaluation results of all applicants
for the Jefferson County Police Department, by race and
gender if possible, since 1975;
5. Any and all other test or exam results of any nature of
all applicants for the Jefferson County Police
Department, by race and gender if possible, since 1975;
6. Any and all other test or exam results pertaining to the
hiring of Jefferson County Police Officers, by race and
gender if possible, since 1975;
7. A list of all passing scores, failing scores, number of
applicants, top scores and bottom scores of all tests or
exams pertaining to the hiring of Jefferson County
Police Officers since 1975;
8. A list of all officers hired and the exam and test scores
of all officers hired by the Jefferson County Police
Department, by race and gender if possible, since 1975;
9. Any and all separate lists designated by race or gender
of all applicants for and all officers hired by the
Jefferson County Police Department since 1975;
10. Any and all scores (written, oral, physical and psychological)
of all applicants for and officers hired by the Jefferson County
Police Department who are or were related to current or
former officers during the hiring process since 1975;
11. A list of all officers promoted and the exam and test scores (both written and oral) of all officers promoted by the Jefferson County Police Department since 1975.
12. A list of all officer candidates for promotion and the
exam and test scores (both written and oral) of all
officer candidates for promotion by the Jefferson County
Police Department, by race and gender if possible, since
1975.
On behalf of the Jefferson County Police Merit Board, Andy Latkovski, Secretary-Examiner, responded to Mr. Flaherty's request on July 20, 1995. Relying on KRS 61.878(1)(a) and OAG 78-468, he maintained that the records identified in request numbers 1, 2, 3, 4, 5, 6, 7, 8, 11 and 12 were excluded from public inspection because they pertain to examination materials and test scores, and thus implicate the privacy interests of the applicants. With respect to request number 9, Mr. Latkovski referred Mr. Flaherty to Martha Lips in the office of U. S. District Court Judge Charles Allen. He explained that the information Mr. Flaherty sought was submitted to the court pursuant to the Baker Consent Decree on a semi-annual basis from 1980 until 1990. In closing, Mr. Latkovski advised Mr. Flaherty that the Merit Board does not maintain records satisfying request number 10.
In his letter of appeal, Mr. Flaherty questions the Merit Board's reliance on KRS 61.878(1)(a), and the cited Attorney General's opinion, noting that OAG 79-468 deals with university examination papers and test scores, “and has no relevancy to a public employee situation.” Acknowledging the need to protect the personal privacy of the applicants, he argues that the Merit Board is obligated to delete the information appearing on the disputed records which implicates privacy concerns, and release the remaining information. Mr. Flaherty indicates that the press has been afforded access to the same records he requested, and suggests that this disparate treatment of requesters constitutes a violation of the Open Records Act.
In a follow-up letter to this office, the Merit Board, through its attorney, Larry C. Ethridge, elaborated on Mr. Latkovski's response. Mr. Ethridge reaffirmed the Merit Board's original position that the disputed records are exempt pursuant to KRS 61.878(1)(a). Further, he explained that neither the Jefferson County Police Department nor the Merit Board maintain records in the format requested, “and piecing together the voluminous information of the type requested dating back to 1975 would be an expensive, burdensome and unwieldy task for the Secretary/Examiner to the Merit Board, who is the only county employee assigned directly to the Merit Board.” Mr. Ethridge estimates that it would take this employee “weeks or months” to compile the records in the format requested.
Moreover, Mr. Ethridge asserts, the Merit Board advised Mr. Flaherty that much of the information he seeks can be found in the semi-annual reports on minority hiring and promotion goals filed with the federal district court under the consent decree in Charles W. Baker, et al., v. County of Jefferson et al., Case No. C-80-8039(L)(A) from 1980 through 1990. The Merit Board, he noted, informed Mr. Flaherty that he could secure access to the official district court reports through the court. Finally, Mr. Ethridge observes, the Merit Board did not permit the press to inspect the records requested by Mr. Flaherty, but denied the request on the same grounds. To support this assertion, he attaches a copy of Courier-Journal reporter Gardiner Harris's request and the Merit Board's denial.
We are asked to determine if the Jefferson County Police Merit Board violated provisions of KRS 61.870 to 61.884 in responding to Mr. Flaherty's request. For the reasons set forth below, and upon the authorities cited, we conclude that to the extent that Mr. Flaherty requested statistical information only, the Merit Board's reliance on KRS 61.878(1)(a) was misplaced. To the extent that Mr. Flaherty requested the names of successful applicants in conjunction with their test scores, the Merit Board may, in its discretion, protect their recognized privacy rights by producing a record which does not connect the identity of the applicant with his score, thereby protecting that interest. Inasmuch as the exceptions to public inspection are discretionary, and are intended to be used as a “shield and not a shackle,” OAG 79-275, p. 3, the Merit Board may discharge its duties under the Open Records Act by affording Mr. Flaherty access to the records he seeks so that he might “expend his own time and effort in digging out the information which has not to date been compiled . . . .” OAG 86-51, p. 4. Although it is not required to do so, the Merit Board may, in the alternative, create a record which conforms to Mr. Flaherty's request.
The Merit Board asserts, and this office has recognized, that an aplicant for public employment has a cognizable privacy interest in test scores and examination results when those scores or results are disclosed in conjunction with the aplicant's name or other personally identifiable information. OAG 78-382; OAG 78-468; OAG 80-158; OAG 90-142; OAG 91-41; OAG 91-155; 92-ORD-1190; 92-ORD-1238. In the absence of a superior public interest in disclosure, such records may be withheld pursuant to KRS 61.878(1)(a), which excludes from inspection “[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.”
Against this recognized privacy interest, we must weigh the competing public interest in disclosure. Inspection of records pertaining to the testing and hiring practices of a county police merit board serves the public interest by revealing whether the merit board is properly executing its statutory duty “to classify and examine applicants seeking employment as officers or emloyees of the police force of the said county . . . .” KRS 78.405(1). Such records may disclose patterns of discrimination and other improprieties in the testing and hiring process. Conversely, such records may exonerate the merit board of any alleged improprieties. Simply stated, disclosure of those records would “further the citizens' right to know . . . .” Zink v. Commonwealth, Ky. App., 902 S.W.2d 875, 829 (1995).
A careful review of Mr. Flaherty's request discloses that he is primarily interested in statistical information, namely test results, whether written, oral, physical, or psychological, in conjunction with race and gender. KRS 61.878(2) specifically provides that “[n]o exemption in this section shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person.” Mr. Flaherty does not request the names of unsuccessful applicants, or other personally identifiable information such as home address, telephone number, or social security number. The privacy interest of the unsuccessful applicants in their scores is therefore correspondingly protected. Thus we need not resolve the question of whether the privacy interests of the unsuccessful applicants in their test scores outweighs the public's interest in disclosure. To the extent that Mr. Flaherty does request the names of successful applicants, in conjunction with their scores, we believe that the Merit Board may, in its discretion, produce a list which does not connect the identity of the successful applicant with his or her score. Although the public is entitled to know the identities of successful applicants who now serve, or have served, in the Jefferson County Police Department, the privacy interest of those applicants in their individual test scores, as opposed to mere statistical information, is superior. See opinions cited above.
With respect to the Merit Board's argument that the records are not maintained in the format requested, and that compiling the records in the requested format would be an “expensive, burdensome, and unwieldy task,” we find that the Board may discharge its duty under the Open Records Act by making available for inspection and copying records which contain the information sought. As we noted at page 4 and 5 of OAG 86-51:
Where a person requests that a list of material be supplied or that he be furnished with broad categories of information, that person should be afforded the opportunity to expend his own time and effort in digging out the information which has not to date been compiled unless that information may be excluded from public inspection under KRS 61.878. Thus, if the records and materials requested, although not compiled in any kind of a list form, are nevertheless in the possession of the public agency, the files containing those public records should be made available for public inspection in order that the requesting party may attempt to secure the particular documents and records with which he is concerned.
Even more to the point, we have observed:
KRS 61.872 provides that all public records (except as otherwise provided) shall be open for inspection. If there were records or compilations accumulating the information [the requester] has requested, they would have to be disclosed. The issue here is not whether the request is a blanket one, or whether it is specific, as [the requester] contends. The issue is whether there exists records or compilations that would satisfy his request.
Obviously information documenting, in bits and pieces, facts [the requester] is attempting to determine, will appear among the many records that are generated . . . through time. Public agencies, however, are neither required nor directed by open records provisions to devote the taxpayer's time to reviewing voluminous records in order to compile information to satisfy a particular information request. The legislature has recognized this by providing only that records must be made available for inspection, not that information must be extracted and compiled. (Citation omitted.)
OAG 88-79, p. 3. Although it is not required to do so, the Merit Board may, at its discretion, segregate those portions of the records which contain the information Mr. Flaherty seeks, thereby insuring the nondisclosure of personally identifiable information which appears in the records. However, to require it to do so is to read an additional duty into the Open Records Act, that is the duty to carry out research or compile information to conform to a given request. This the law does not mandate. [1]
To the extent that the Merit Board does not maintain records containing the information Mr. Flaherty seeks, its denial of that portion of his request cannot be said to violate the Open Records Act. For example, the Merit Board asserts that it does not maintain records containing the information identified in request number 10. Obviously, the Merit Board cannot produce records which do not exist. Nor is the Merit Board required to generate lists to satisfy a request for a list if no such lists currently exist. See, e.g., OAG 89-61, p. 4 (holding that “one does not have a right under the Open Records provisions to require that a particular list be made.” See also, OAG 76-375; OAG 88-79). [2] Assuming that the Merit Board does not maintain lists satisfying request numbers 7, 8, 9, 11, and 12, it is not required to create these lists.
Finally, we note that the Merit Board did not properly discharge its duties under the Open Records Act by referring Mr. Flaherty to the federal district court for a review of compliance reports submitted under the Baker Consent Decree. KRS 61.872(1) provides that “[a]ll public records shall be open for inspection by any person . . . .” The term “public record” is defined at KRS 61.870(2) as:
[A]ll 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.
There is no specific exception in the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from the other agency. OAG 90-71.
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/1138
Distributed to:
Andy Latkovski
Secretary-Examiner
Jefferson County Police Merit Board
517 Court Place
Louisville, Kentucky 40202
Verlin E. Flaherty
615 Coral Ridge Road
Shepherdsville, Kentucky 40165
Larry C. Ethridge
Mosley, Clare & Townes
Suite 500
The Hart Block Building
730 West Main Street
Louisville, Kentucky 40202-2653
[1] As this office observed in OAG 79-275, p. 6: The compiling of a list to be released to the public is a matter within the discretion of the licensing board. We have often said that an agency is not required to compile a list when such a list does not already exist. However, it is sometimes more expedient for an agency to compile a list for distribution than to allow members of the public to come into the office and compile their own list from the agency's records.
[2] This is distinguishable from an agency electing to create a list per OAG 79-275, and the discussion above. Mr. Flaherty requests specific lists. If no such lists exist, the Merit Board is not obligated to generate them to satisfy his request.