NOT TO BE PUBLISHED

96-ORD-116

May 23, 1996

In re: Glenn E. Bone/Louisville Civil Service Board

OPEN RECORDS DECISION

This matter comes to the Attorney General on consecutive appeals from the Louisville Civil Service Board's responses to Mr. Glenn E. Bone's two open records requests to inspect certain of the Board's records. Because the same issue is raised in both appeals, we will consider both in one decision.

In his first request, dated August 31, 1995, Mr. Bone requested to inspect the following records relevant to this appeal:

1995 Police Recruit Eligibility list with the names of applicants, written test scores, oral test scores and the “standardized scores” of all applicants in Bands A and B.

Mr. Mark W. Dobbins, Attorney at Law, by letter dated September 6, 1995, responded to Mr. Bone's request on behalf of the Board. In his response, he states in part:

You may review the 1995 Police Recruit Eligibility list. It will reflect the names of the applicants and various other information. This eligibility list represents the final document in connection with what you have requested. Any other preliminary information relating to the scoring of individuals' examinations and placement on lists is, because of its preliminary nature, not subject to inspection.

In his September 9, 1995 letter of appeal to this office, Mr. Bone, in relevant part, states:

The documents I am being denied inspection are the written test scores, oral test scores, “standardized scores” and the successful candidates “individual” placement on such lists, for the 1995 police recruit list of eligibles. The “standardized scores” are the final scores after the Board combines 50% of the written score and 50% of the oral score to arrive at the final grade.

The written and oral scores, prior to being combined to achieve a final grade were perhaps exempt from public inspection. But only prior to the certification of a list of eligible candidates. Once the Board combined both grades to obtain a final grade those scores are no longer preliminary in nature but in fact are a part of the completed examination process.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides in relevant part:

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.

Although the Board allowed Mr. Bone to inspect the 1995 Police Recruit Eligibility list, which contained the names of the successful candidates and their respective final grades, it denied his request to inspect the raw test scores or test component scores, which made up the final grade. In denying this portion of Mr. Bones's request, the Board invoked no statutory exception which authorized nondisclosure. The basis of the Board's denial was that the eligibility list was the final document in relation to the records requested and these test component scores were not subject to inspection because they were preliminary information.

Denial of an open records request must be articulated in terms of the requirements of the statute. The Board's response is deficient in that it fails to cite a specific statutory exception which authorizes the withholding of the requested records and a brief explanation how the exception applies to the record withheld.

Procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.

Moreover, the burden of proof establishing that the requested records fall within an exception of the Open Records Act falls upon the public agency. KRS 61.880(2)(c). The Board denied disclosure of the written and oral component scores on the basis that they were preliminary in nature and not the final grade. However, the component scores, once incorporated into and made part of the final grade, lose their preliminary character. Thus, the Board failed to meet its burden of establishing that the component test scores were exempt from disclosure under the Act.

Accordingly, absent a statement of a specific exception upon which the board is relying to support its withholding of the records or establishing that records are exempt from disclosure under the Open Records Act, we conclude that the Board's response to Mr. Bone's first open records request was procedurally and substantively deficient.

After receipt of Mr. Bone's September 9, 1995 letter of appeal of the denial of his first request, this office received a second letter of appeal from Mr. Bone, dated September 22, 1995, in which he appeals the denial by the Board of a second request, dated September 11, 1995, to inspect the same records requested in the August 31, 1995 open records request discussed above.

By letter dated September 14, 1995, Mr. Dobbins, again on behalf of the Board, responded to Mr. Bone's second request, stating in relevant part:

However, certain items on these lists, to wit, raw test scores or test component scores, may be redacted by the Board pursuant to the dictates of KRS 61.878(1)(a). That provision exempts from the requirements of the Kentucky open records act “public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy . . . .” Attorney General's Opinion 78-382 supports the exemption of such materials from disclosure. However, KRS 61.878(3) provides that you are entitled to review these materials with regard to your own raw or component scores.

In his September 22, 1995 letter of appeal, Mr. Bone states he received the 1995 Police Recruit Eligibility List which he requested, but scores on the document listed under the columns labeled “WRITTEN SCORE, WRITTEN RESIDENCY, ORAL SCORE, STANDARD ORAL, STANDARD WRITTEN and FINAL” were deleted. Along with his letter of appeal, Mr. Bone enclosed a copy of the document with the redacted information. He states that he was improperly denied access to these preliminary scores because the component scores were no longer preliminary upon the Board's combining of the scores and submitting the information to the Division of Police to use in employment consideration.

We are asked to determine if the Board's action in redacting the preliminary test scores was consistent with the Open Records Act. For the reasons which follow, we conclude that the Board improperly withheld from Mr. Bone's inspection the preliminary scores and other records that were made part of and incorporated into the grades of the successful candidates whose names were placed on the eligible list.

The Board denied Mr. Bone's second request on the basis that the preliminary scores were exempt from inspection because the component test scores were public records containing information of a personal nature which the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy under KRS 61.878(1)(a). In support of its denial, the Board cited OAG 78-382 which held that merit system test scores of individuals certified on a specific merit system register were matters of a personal nature within the contemplation of KRS 61.878(1)(a) and were, therefore, exempt from disclosure.

This office has consistently recognized that, as a general rule, an applicant for public employment has a cognizable privacy interest in test scores and examination results when those results are disclosed in conjunction with the applicant's name or other personally identifiable information. See 96-ORD-33 and the opinions cited therein.

However, the test scores involved in the instant appeals are factually distinguishable from those in prior opinions of this office in that they are required to be open to public inspection by statute. Under this circumstance, we need not engage in a balancing analysis of privacy interests under KRS 61.878(1)(a) against the competing public's interest in disclosure. The legislature has directed that in a city civil service system, created under KRS 90.110 to 90.230 and as is involved here, the list of eligibles, with their respective grades, be open to public inspection. KRS 90.170(4). Thus, the test scores involved in these appeals are required to be open to public inspection by statute.

KRS 90.160(1)(c) directs the Board to make rules and regulations which provide:

For the creation of eligible lists upon which shall be entered the names of successful candidates in the order of their standing through examination; and for the filling of places in the classified service by the appointing authorities who shall select from not more than three (3) candidates graded highest on the appropriate eligible list. [Emphasis added.]

KRS 90.110(11) defines “Eligible list” to mean:

a list of names of persons who have been found qualified through suitable competitive examinations for positions or classes of positions as provided for in KRS 90.110 to 90.230. [Emphasis added.]

As noted above, the preliminary scores which make up a part of and are incorporated into a successful candidate's final grade are no longer preliminary in nature and pursuant to KRS 90.170(4) would be open to public inspection. Thus, we conclude that the Board's redaction of the component test scores in the instant case was improper and inconsistent with the Open Records Act. Accordingly, a copy of the 1995 Police Recruit Eligibility list with the test component scores unredacted should be made available for Mr. Bone's inspection.

We note in reviewing the redacted copy of the eligibility list the Board provided Mr. Bone that the social security numbers of the listed eligibles are not masked. This office has held in prior opinions that social security numbers are among the public records to which the right of privacy extends and may be withheld from disclosure under KRS 61.878(1)(a). Disclosure of the social security numbers of individuals on the eligible list is not required by KRS 90.170(4) and may be redacted.

Our decision is limited to the facts presented in this appeal and turns on the public agency's failure to comply with the procedural requirements of KRS 61.880(1); its failure to sustain its burden of proof to justify the withholding of public records, as required by KRS 61.880(2)(c); and the fact that KRS 90.170(4) requires that the names and respective grades of successful candidates on the eligibility list be open to public inspection.

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/1205/1282

Distributed to:

Glenn E. Bone

1032 South 6th Street

Louisville, Kentucky 40203

Mark W. Dobbins

Tilford, Dobbins, Alexander,

Buckaway, & Black

1400 One Riverfront Plaza

Louisville, Kentucky 40202

Jeff Prewitt, Director

Louisville Civil Service Board

609 West Jefferson Street

Louisville, Kentucky 40202-2728