NOT TO BE PUBLISHED
96-ORD-59
March 18, 1996
In re: Linda Um Bayemake/Kentucky State University
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from Kentucky State University's response to Linda Um Bayemake's request for public records. On January 24, 1996, Ms. Um Bayemake requested access to and copies of “recommendations by the unit committee, the Library Director, the Vice President, and the Tenure and Promotion Committee.” Having received no response to her request, Ms. Um Bayemake initiated this open records appeal on February 6, 1996.
In response to the notification of appeal issued by this office on February 16, KSU's general counsel, Harold S. Greene, Jr., contacted Ms. Um Bayemake. He advised:
President Smith has no record of the receipt of an Open Records Request. If you seek personnel related records, please indicate which records you are concerned with. As you perhaps know, some of your records are being reviewed by the Tenure and Promotion Appeals Committee pursuant to your request. As General Counsel, I am reluctant to make any inquiry of the committee until deliberations are completed. I am also in receipt of an EEO request for records. In order to keep these matters in order, I suggest that you submit your Open Records Request directly to me and I will expedite your request within the guideline of the statute.
Thus, Mr. Greene indicated that KSU never received Ms. Um Bayemake's request.
In a follow-up letter dated February 26, 1996, this office instructed KSU to respond to Ms. Um Bayemake's January 24 request, a copy of which had been sent to the University on February 16. On March 1, Mr. Greene provided Ms. Um Bayemake with “a set of completed Faculty Peer Evaluation Forms received in [her] file,” but deleted the names of the parties making the recommendations “to protect the privacy inherent in the process.” The University denied her request for “recommendations by the unit committee, the Library Director, the Vice President, and the Tenure and Promotion Committee.” Mr. Greene explained:
1. Faculty members agreed to be governed by the Kentucky State University Faculty Handbook upon acceptance of a contract. Section 2.7.3.4, Dossier Confidentiality provides:
Upon request, the candidate may review his or her dossier prior to the final tenure review.
All recommendations made as a part of the tenure process are not part of the dossier. These are confidential and are not available for review.
By agreement, the University and its faculty have agreed that this information is of a personal nature because the process of promotion and tenure would be frustrated by a policy of disclosure. The University exempts your request pursuant to KRS 61.78(a) [sic].
2. The recommendations are preliminary in nature and not a final action. KRS 61.878(1), (h) and (i) provide an exemption in these instances.
Although he provided her with records she did not request, Mr. Greene effectively denied Ms. Um Bayemake's request in its entirety.
Ms. Um Bayemake subsequently forwarded a copy of her responsive memorandum, dated March 6, 1996, and addressed to Harold Greene, to this office. In it, she questions the authenticity of the peer evaluation forms with which she had been provided. She noted the similarity of the handwriting on each form, and the discrepancy in the total number of forms she received. She also objected to the deletion of the names of the persons making the recommendations. In closing, she asked whether she would be entitled to review and copy the recommendations of the Library Tenure and Promotion Committee, the Library Director, the Vice President, and the University Tenure and Promotion Committee, when final action is taken on her appeal of KSU's denial of her request for promotion.
The question presented in this appeal is whether Kentucky State University violated provisions of the Open Records Act in denying Ms. Um Bayemake's request. For the reasons set forth below, and upon the authorities cited, we conclude that the University's response was both procedurally and substantively deficient, and therefore constitutes a violation of the Act.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
To the extent that Kentucky State University failed to respond in writing, and within three business days, to Ms. Um Bayemake's request, its response was procedurally deficient. This deficiency is mitigated by the fact that the request apparently did not reach KSU's custodian of records. We urge KSU to review the cited provision, as well as KRS 61.876, [1] to insure that future requests are delivered to the custodian, and that future responses conform to the procedural requirements for such responses.
Turning to the substantive issues in this appeal, we direct KSU's attention to KRS 61.878(3). That statute provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
This provision has been construed to give public agency employees, including university employees, a broad right of access to records which relate to them. See, e.g., 93-ORD-19; 94-ORD-9; 94-ORD-108. KRS 61.878(3) overrides any of the exemptions to public inspection set forth in KRS 61.878(1)(a) and (j), [2] with the exception of those noted in the concluding sentence of the provision, [3] when an open records request is submitted by a public agency employee or university employee. Under the mandate of this statute, Ms. Um Bayemake is entitled to review, in an unredacted form, “any record including preliminary and other supporting documentation that relates to [her] . . . includ[ing] job performance, . . . evaluations, [and] promotions.” Although the University is not required to release records of an evaluative nature to third parties who seek access to them, it cannot withhold such records from one of its employees if those records “relate[ ] to [her].” KRS 61.878(3). 94-ORD-108. KRS 61.878(1)(a), (i), and (j) notwithstanding, [4] Ms. Um Bayemake is entitled to inspect and copy all peer evaluations, including the identity of the evaluator, and all recommendations by the unit committee, the Library Director, the Vice President, and the Tenure and Promotion Committee.
The University maintains that Ms. Um Bayemake forfeited her right of access to records relating to her when she contracted with KSU. Relying on Section 2.7.3.4 of the Faculty Handbook, Mr. Greene asserts that the University and faculty “have agreed that this information is of a personal nature because the process of promotion and tenure would be frustrated by a policy of disclosure.” We reject this argument. In our view, it is inconsistent with the Open Records Act for a public agency to require its employees to forfeit certain of their rights under the Act as a condition of employment. 95-ORD-87; 96-ORD-39. Although we have recognized that an agency can promise confidentiality as far as the permissive exceptions permit, and that such promises will be honored, OAG 83-256, p. 4, an agreement to maintain confidentiality need not be honored if it is inconsistent with the Open Records Act. OAG 88-1; OAG 92-149. Because we have determined that these records are not exempt per KRS 61.878(1)(a), (i), and (j), because they were requested by a public agency employee and relate to that employee, the confidentiality provision of the Faculty Handbook is inconsistent with the Open Records Act, and cannot be honored. We reiterate that the records Ms. Um Bayemake seeks must be disclosed to her in their entirety.
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/153
Distributed to:
Hon. Harold S. Greene, Jr.
General Counsel
Kentucky State University
400 East Main Street
Frankfort KY 40601
Linda Um Bayemake
113 West Third Street
Frankfort KY 40601
[1] KRS 61.876 provides:(1) Each public agency shall adopt rules and regulations in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection, and such rules and regulations shall include, but shall not be limited to: (a) The principal office of the public agency and its regular office hours; (b) The title and address of the official custodian of the public agency's records. (c) The fees, to the extent authorized by KRS 61.874 or other statute, charged for copies. (d) The procedures to be followed in requesting public records.(2) Each public agency shall display a copy of its rules and regulations pertaining to public records in a prominent location accessible to the public.
[2] KRS 61.878(1)(k) and (l) authorize nondisclosure of records made confidential by federal or state law and are not overridden by KRS 61.878(3).
[3] The final sentence authorizes an agency to withhold examinations and documents relating to ongoing criminal or administrative investigations even when they are requested by the public agency employee and relate to him.
[4] Mr. Greene erroneously cites KRS 61.878(1)(h) and (i) in support of the University's argument that the recommendations are preliminary in character. Those provisions were recodified in 1994, and now appear at KRS 61.878(1)(i) and (j).