TO BE PUBLISHED

96-ORD-51

March 8, 1996

In re: Bill Carr/Department of Agriculture

Open Records Decision

This matter comes to the Attorney General on appeal from the Department of Agriculture's denial of Bill Carr's request to inspect records in the Department's custody relating to employees who received distinguished service awards. Mr. Carr, an information systems manager in the Division of Animal Health, requested access to the P1's for the 86 Department employees who received the award, showing the award and its effective date. In addition, Mr. Carr asked to inspect the 1994 year-end and 1995 mid-year evaluations of the 86 employees who received the awards.

In its unsigned responses, the Department denied Mr. Carr's requests. With respect to his request for access to P-1's, the Department advised:

The request for these records is denied as the application places an unreasonable burden on the agency in producing the public records and the Department has reason to believe that repeated requests by this employee are intended to disrupt other essential functions of the Department KRS 61:872 (6) [sic]. To compile this information would require the one employee who maintains the personnel files to spend an inordinate amount of hours pulling the files of the 86 employees and reviewing the files to show when the award took place and its effective date. This employee is the only employee who could complete this information as the personnel files contain information that would otherwise be excluded from the Open Records Act. Additionally, the Department has received numerous Open Records Requests from this employee in recent weeks. The Department has reason to believe that this employee's intent is in part to disrupt his supervisors and the Department as he is upset that he failed to receive a distinguished service award.

The Department also denied Mr. Carr's request for the 1994 year-end and 1995 mid-year evaluations of the 86 employees who received the award. Relying on KRS 61.878(1)(a), the Department advised Mr. Carr that the evaluations “are excluded from the application of the Open Records Act pursuant to KRS 61:878(1)(a) [sic].” It was the Department's position that “[t]his information contains information that constitutes a clearly unwarranted invasion of personal privacy.”

This appeal raises two issues relative to the Department of Agriculture's response to Mr. Carr's request: whether the Department properly relied on KRS 61.872(6) in denying him access to the P-1's of the 86 individuals who received distinguished service awards, and whether the Department properly relied on KRS 61.878(1)(a) in denying him access to the evaluations of those employees. For the reasons set forth below, and upon the authorities cited, we conclude that the Department violated the Act in refusing to disclose the P-1's of the 86 employees who received the awards. Although the Department may redact from these records information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as social security numbers, home addresses, and birthdates, pursuant to KRS 61.878(1)(a) and 61.878(4), we do not believe that it can properly withhold the P-1's in their entirety on the grounds that production of these records would be unreasonably burdensome. However, we believe that the Department relied in good faith on KRS 61.878(1)(a), and previous opinions of this office, in denying Mr. Carr access to the evaluations of the 86 employees who received distinguished service awards. Although an argument can be made that disclosure of portions of the evaluations may further the public's ability to determine whether the Department is properly executing a personnel function by employing a selection process based on the criteria set forth at 101 KAR 2:036 Section 11(2)(a) through (d), exceptional job performance is only one of four criteria found in the regulation. Inasmuch as other criteria may have been employed in the selection process, we believe that the privacy interests of the employees who received the awards in their performance evaluations outweigh the public's interest in disclosure.

In 93-ORD-15, this office addressed the propriety of the Transportation Cabinet's denial of a request for the current P-1's of employees whose specification code numbers were identified in the request. We held that denial of inspection was improper. At page 3 of that decision, we observed:

[A]n employee's P-1 is a document, which when approved, notifies the employee of an action affecting his or her status, pay, position, classification or other condition of employment. Portions of the P-1 contain information of a personal nature within the meaning of KRS 61.878(1)(a). Such information would include social security numbers and home addresses. This Office has, however, consistently recognized that although a public employee is entitled to privacy in his or her personal life and off-duty activities, release of documents containing information which relates to the individual's public employment, such as name, position, work station, and salary, does not constitute an unwarranted invasion of privacy. OAG 76-717; OAG 87-37; OAG 91-48; OAG 91-176. . . . The Cabinet should have released a `sanitized' version of the P-1's, in accordance with KRS 61.878(4), identified the general nature of the information withheld, and cited the specific exception authorizing partial nondisclosure.

It is, therefore, well settled that a public agency cannot issue a blanket denial of a request for P-1's on the basis of the privacy exception.

The Department argues that Mr. Carr's request is unreasonably burdensome insofar as it would require the employee who maintains the agency's personnel files to “spend an inordinate amount of hours pulling the files of the 86 employees and reviewing the files to show when the award took place and its effective date.” We are not persuaded by this argument. KRS 61.872(6) provides:

If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.

The purpose and intent of the Open Records Act is to permit “the free and open examination of public records.” KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with “reasonable particularity” those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the requester satisfies this condition. If an agency then invokes KRS 61.872(6) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden on it.

This burden is not sustained by the bare allegation that the request is unreasonably burdensome. As we noted in OAG 77-151, at page 3:

Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law . . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection . . . .

Thus, in OAG 89-79, we held that the Department of Transportation violated the Open Records Act by failing to document, by clear and convincing evidence, how the subject request placed an unreasonable burden on it. Mere invocation of the cited exception does not sustain the agency's burden.

Only if the agency has adduced evidence which would warrant this Office in finding that the burden is indeed an unreasonable one, will the Attorney General uphold its action. In OAG 89-88, we ruled that the Department of Insurance had sustained this burden. The Department indicated that the requested records consisted of some 800 documents, and explained the difficulty of separating confidential from nonconfidential material. Similarly, in OAG 91-58 we held that the Louisville/Jefferson County Office of Economic Development properly denied a request for “all notes, letters, memos, and studies which might contain information about the exchange of information between the OED” and various offices and agencies, and that it sustained its burden of proof under KRS 61.872(6). The agency explained that the requested documents might be located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt materials.

Simply stated, the Department of Agriculture has not met its burden of proof. Retrieving 86 P-1's which reflect the receipt of a distinguished service award from the personnel files of Department employees, and sanitizing those records so as not to disclose such personal information as social security number, home address, and date of birth, does not, in our view, constitute an unreasonable burden. Compare 96-ORD-42 (holding that request for 1167 P-1's was unreasonably burdensome where agency adduced proof that approximately 291 hours would be expended in satisfying the request.) The Department of Agriculture violated the provisions of the Open Records Act in denying this portion of Mr. Carr's request, and is directed to immediately release the records to him.

Whether the Department violated the Act in withholding the 1994 year-end and 1995 mid-year evaluations of the 86 employees who received the awards pursuant to KRS 61.878(1)(a) is a closer question. That exception permits an agency to withhold “[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]” The Attorney General has long recognized that inspection of employee evaluations may be denied under KRS 61.878(1)(a). OAG 77-394; OAG 79-348; OAG 80-58; OAG 82-204; OAG 86-15; OAG 89-90. The privacy interests protected are as much those of the evaluator as those of the person being evaluated insofar as the evaluator generally makes his evaluation with the understanding that it will remain confidential.

In 92-ORD-1145, we departed from this position, declaring that the performance evaluation of a school system superintendent was subject to disclosure. This decision was premised on the notion that the public's interest in reviewing those portions of the superintendent's evaluation which have a direct bearing on the management of the school system is superior to the reduced expectation of privacy in that document which the superintendent might have. At page 4 of that decision, we expressly declined to extend this reasoning to rank and file public employees, noting:

We do not, in so holding, establish a rule of general application vis-a-vis performance evaluations. Nor do we depart from any opinion previously issued by this Office. [Footnote omitted.] Because the Superintendent is ultimately responsible for the management of the school system, his performance is of far greater interest to the public, and his expectation of privacy in the evaluation of that performance is correspondingly reduced. The same cannot be said of the other employees of a school system or any other public agency, since disclosure of their evaluations may spur unhealthy comparisons, breeding discord in the work place, and result in injury and embarrassment to the employee. We continue to ascribe to the view that an employee's right of privacy in his evaluation is superior to the public's interest in inspecting that evaluation. Our decision is limited to the facts presented in this case.

We affirmed this holding in 92-ORD-1375, declaring that anonymous evaluations of professors made by their students are exempt from public inspection pursuant to KRS 61.878(1)(a), and in 94-ORD-54, declaring that a city auditor's evaluation is exempt because she is not “`ultimately responsible for the management' of the City of Louisville.” 94-ORD-54, p. 4. We again affirmed this position in 94-ORD-132, concluding that the evaluation of a chairman of a university department, although of great public interest, could properly be withheld pursuant to KRS 61.878(1)(a) because the chairman's privacy interests were superior to the public's interest in disclosure.

These decisions were premised on the privacy analysis developed by the Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992). In that opinion, the court articulated the following standard for determining if a record may properly be excluded from inspection pursuant to KRS 61.878(1)(a):

[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.

Board of Examiners at 327-328. In closing, the court admonished that “the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity . . . .”

In an even more recent analysis of the privacy exemption, the Court of Appeals refined this standard. Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994). At page 328 of that opinion, the court discussed its “mode of decision”:

[O]ur analysis begins with a determination of whether the subject information is of a `personal nature.' If we find that it is, we must then determine whether public disclosure `would constitute a clearly unwarranted invasion of personal privacy.' This latter determination entails a `comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [Board of Examiners] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.

Having recognized a cognizable privacy interest in the records at issue in that case, the court turned to the issue of whether an invasion of privacy was warranted based on a weighing of the public interest in disclosure against the privacy interest involved. The court reasoned:

We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. This is the approach the United States Supreme Court has taken in a similar analysis of requests under the Freedom of Information Act (FOIA). See Dept. Of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 774-75. 109 S.Ct. 1468, 1482-83, 103 L.Ed.2d 774, 796-97 (1989). As stated in Board of Examiners, supra, “[t]he public's `right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.” 826 S.W.2d at 328. At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.

Zink at 828, 829. The court thus established a bright line test for determining if a public agency's invocation of the privacy exception was proper on the facts presented: If disclosure of the requested record would not advance the underlying purpose of the Open Records Act, namely exposing agency action to public scrutiny, then countervailing interests, such as privacy, must prevail. 95-ORD-151.

As noted, this office has consistently recognized that an employee has a cognizable privacy interest in records of an evaluative nature. In general, and based on reasoning set forth in the cited decisions, this office has held that that interest is superior to the public's interest in disclosure. Although an argument can be made that disclosure of the performance ratings of the 86 employees who received distinguished merit awards will serve the public's interest by facilitating public oversight of agency action, since the awards are aimed at awarding distinguished service, and the exceptional performance of the employees who received them would be reflected in their performance evaluations, the regulations governing distinguished service awards list three other criteria for conferring the awards. We believe that the public's interest in disclosure of the performance evaluations of these 86 employees is outweighed by the employees' privacy interest because the evaluations tell only part of the story. An award may also have been conferred for assumption of additional duties, or actions which resulted in financial savings or improved services to the Commonwealth. 101 KAR 2:036 Section 11 (2)(a) through (d). Because exceptional performance is only one of four criteria upon which an agency may base its decision, we believe that disclosure of performance evaluations would not facilitate the public's ability to assess the selection process employed by the Department.

Given the fact that the performance evaluations contain information of a personal nature in which public employees have a cognizable privacy interest, and the relevant public interest supporting disclosure is conjectural, insofar as inferences may be drawn from incomplete evidence, we conclude that disclosure would constitute a clearly unwarranted invasion of the privacy of those employees in the Department of Agriculture who received the awards.

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/1137

Distributed to:

Ed Logsdon, Commissioner

Department of Agriculture

7th Floor - Capital Plaza Tower

500 Mero Street

Frankfort, Kentucky 40601

Bill Carr, Information Systems Manager

Department of Agriculture

Suite 231

100 Fair Oaks Lane

Frankfort, Kentucky 40601

Donna Dutton, General Counsel

Department of Agriculture

7th Floor - Capital Plaza Tower

500 Mero Street

Frankfort, Kentucky 40601