NOT TO BE PUBLISHED

96-ORD-45

February 27, 1996

In re: David H. Vance/Kentucky State Police

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Kentucky State Police's denial of Mr. Jon S. Brumfield's open records request to inspect the “test scores for the current Kentucky State Police Cadet Class No. 73 as well the previous Cadet Class No. 72.”

On behalf of the Kentucky State Police, Ms. Pam Burris, Paralegal, Legal Office, responded to Mr. Brumfield's request, stating:

The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to a particular provision. KRS 61.878(1)(a) exempts public records containing information of a public nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. Also, KRS 61.878(1)(g) exempts 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. Furthermore, no record exists indicating test score results only. Therefore, the information you request is exempt from inspection.

Mr. David H. Vance, an attorney for Mr. Brumfield, submitted a letter of appeal to this office on behalf of his client in which he states:

My client, Jon S. Brumfield, is a recent applicant for employment with the Kentucky State Police. He was denied employment because of a test score which was allegedly lower than the cut-off for the class. However, after being refused employment, my client, who is a white male, received information that those of a race and sex different from his and who scored less on the examination were accepted into the employment class.

For this reason, my client appealed to the Kentucky State Police Personnel Board and requested from the acting Commissioner of the Kentucky State Police, copies of the test scores for State Police Cadet classes No. 72 and 73, in order to verify whether he was discriminated against in any fashion. (See attached.) In particular, my client requests anonymous test score results identified only by sex and race.

On June 14, 1995, my client's request to inspect these records was denied on the basis of KRS 61.878(1)(g). (See attached.) However, we believe that the basis for this denial ignores the provision of KRS 61.878(3) which negates any exemption denying a state employee's right to examine test scores.

We are asked to review the response of the Kentucky State Police to determine whether the denial of Mr. Brumfield's request was consistent with the Open Records Act.

In his request, Mr. Brumfield asked to review “test scores for the current Kentucky State Police Cadet Class No. 73 as well the previous Cadet Class No. 72.”

In the letter of appeal, Mr. Vance, on behalf of Mr. Brumfield, clarifies his client's request, stating that he is requesting “anonymous test score results identified only by sex and race.” We note that this clarification was not explained to the Kentucky State Police in the original request. A request to inspect public records should be sufficiently specific to enable the agency to identify the records requested. To this extent, the original request was deficient. Parties, in a spirit of cooperation, should engage in efforts to resolve any ambiguities or present clarifications regarding an open records request in order to avoid unnecessary litigation or appeals.

This office has recognized that an applicant 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 applicant's name or other personally identifiable information. OAG 78-382; 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.”

Mr Brumfield does not request the names of applicants, or other personally identifiable information such as home address, telephone number, or social security number. The privacy interest of the applicants in their scores is therefore correspondingly protected. Although the public is entitled to know the identities of successful applicants who now serve in the Kentucky State Police, the privacy interest of those applicants in their individual test scores, as opposed to mere statistical information, must prevail absent a superior public interest in disclosure. Moreover, KRS 61.878(2) provides that “[n]o exemption in this section shall be construed to prohibit disclosure of statistical information not descriptive of any identifiable person.”

With respect to the Kentucky State Police's response that the records are not maintained in the format requested, the issue is whether there exist records which contain the information that would satisfy his request. 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. If such is the case here, we find that the Kentucky State Police may discharge its duty under the Open Records Act by redacting the excepted information from any agency records, if they exist, which contain the information sought and make the redacted records available to Mr. Brumfield. KRS 61.878(4). To the extent that the KSP does not maintain records containing the information Mr. Brumfield seeks, its denial of the request cannot be said to violate the Open Records Act. Obviously, an agency cannot produce records that do not exist.

The Kentucky State Police reliance upon KRS 61.878(1)(g) in this instance is misplaced, as no request was made to inspect records exempted by that subsection such as “test questions, scoring keys, and other examination data.”

Likewise, KRS 61.878(3), cited by the requester in support of disclosure, has no application here. That subsection applies to the right of a public agency employee “to inspect and to copy any record including preliminary and other supporting documentation that relates to him.” Thus, under KRS 61.878(3), Mr. Brumfield would only be entitled to see his own test scores, not the scores of all other persons who took the tests.

Mr. Brumfield's original request was clarified in his letter of appeal. The Kentucky State Police, when it made its original response, apparently did not have the benefit of this clarification. Accordingly, this appeal is remanded back to the Kentucky State Police in order that it may respond to this clarified request, i.e., to inspect anonymous test score results for State Police Cadet classes No. 72 and 73 identified by sex and race, taking into consideration the points and authorities set out in this decision. The Kentucky State Police should provide its response within three business days after receipt of this decision.

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

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

JMR/1207

Distributed to:

David H. Vance

Day, Smith, Walton, & Durham

113 West Main Street

Frankfort, Kentucky 40601

Pam Burris, Paralegal

Kentucky State Police

919 Versailles Road

Frankfort, Kentucky 40601