TO BE PUBLISHED

96-ORD-232

November 1, 1996

In re: James L. Thomerson/Fayette County Schools

Open Records Decision

This matter comes to the Attorney General on appeal from the response of the Fayette County Public Schools to Mr. Kent Fischer's open records request. Mr. Fischer, Education Reporter for the Lexington Herald-Leader, requested the following records:

A complete listing of all Fayette County School Employees. This information should include, but not be limited to, teachers, janitors, bus drivers, secretaries, administrators, counselors, nurses and teacher aides. The information should include names, position with the district, race, sex, date of birth, time with the district, the school or office they work in and salary.

Mr. Clarence E. Glover, Custodian of Public Records, Fayette County Public Schools, responded to Mr. Fischer's request by providing him with a computer disk containing the name, position with the district, salary, date of hire and school or office location, for all Fayette County Public School employees. However, Mr. Glover stated that date of birth, race, and sex were excluded as it was “information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy,”citing KRS 61.878(1)(a). In the alternative, the School District provided a computer printout of the specific number of employees at each location which included personnel totals by race and sex broken down by schools, salaried employees and hourly employees.

On behalf of his clients, the Lexington Herald-Leader Company and Mr. Fischer, Mr. James L. Thomerson, Esq., appeals the School District's denial and asks this office to determine whether the agency violated the Open Records Act by withholding the race and sex of its employees from the requested records. In his letter of appeal, Mr. Thomerson states in part:

The race and sex of a public employee is not information of a personal nature. Past Opinions of the Attorney General are replete with examples of what is information “of a personal nature.” Such information includes employees' home addresses and telephone numbers, social security numbers, medical information, and marital status. Information of this sort has one thing in common - - you cannot learn this information by simply looking at the person.

Mr. Thomerson argues that in essentially all circumstances, a person's race and sex is open to the public every time the person steps out of his home. He concludes that information which is openly disclosed to the public cannot be deemed to be of a “personal nature” for purposes of KRS 61.878(1)(a). Mr. Thomerson further argues:

Even if race and sex data is deemed to be “of a personal nature,” the second prong of the KRS 61.878(1)(a) test is not met. Disclosure of the information does not constitute a clearly unwarranted invasion of personal privacy. Without knowing this information the public cannot meaningfully monitor the actions of and state of affairs in the Public Schools. Are males being favored in higher paying jobs? Are minorities' employment opportunities the same as those for whites? Are the races and sexes being paid the same for the same work? All of these and numerous others in which the public has a vital interest cannot be answered without the race and sex information in dispute. When this important public interest is weighed against the questionable personal privacy asserted by the Public Schools, it is clear that the disclosure of the information will not result in an unwarranted invasion of personal privacy. See Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S. W. 2d 324 (1992). . . .

(Emphasis in the original.)

After receipt of the letter of appeal, as authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Virginia W. Gregg, General Counsel to the Board of Education of Fayette County, provided this office with a response to the issues raised in the appeal. Ms. Gregg states that the School District provided the requesters, in the format requested, with a breakdown of all public school employees, including the name, position with the district, salary, date of hire, and school or office location. However, it withheld from the response, pursuant to KRS 61.878(1)(a), information which was specific to the individual, identification as to date of birth, race, and gender. In addition to the individualized information noted above, the School District provided a computer printout of the specific number of employees, salaried and hourly, at each location identified by race and gender.

Ms. Gregg emphasizes that the School District's position on the issue of releasing documentation or data regarding race and gender of its employees is that while statistically it may be of public concern for the reasons stated by the appeal, the identification of the race and gender of specific individuals is personal and private to that individual, is not relevant to the stated public purpose, and should not be disclosed by the District.

In further explaining the School District's position, Ms. Gregg states:

It is the position of FCPS that an individual's race and gender are personal and private. It is likely that many individuals do not wish to make an issue of their race and gender. Both are inherent characteristics that have no bearing on their abilities and duties as public servants nor on their being hired or promoted nor on their rate of pay. For example, within the public school system, a teacher's pay is not arbitrarily set. It is determined by (1) training (B.A., M.A., Rank 1, Doctorate), and (2) educational experience (i.e., years on the job).

The information requested should also not be disclosed by FCPS as this information can be obtained in a way which would allow the individual employees to determine disclosure. Because each employee has been identified by work location, should the Herald-Leader wish to obtain the information regarding each individual's race and gender, it has the ability to contact the individuals and ask for the release of this information directly from the individual. While this method might not be as convenient, it certainly can be done and would leave it up to the individual as to whether or not they want this information released.

In conclusion, the purpose stated by the Herald-Leader in requesting this information is to “monitor the actions and state of affairs in the public schools.” This purpose can be accomplished without the information at issue, specifically identified by individual, being revealed by FCPS.

(Emphasis in the original.)

Mr. Thomerson provided this office with a response to Ms. Gregg's letter, in which he states, in part:

Based on the public's ability to monitor the actions of public agencies to ensure that they are properly carrying out the public's business, the employee data in question should be made available. Without this information, there is no way for the public to meaningfully monitor the school system's hiring and employment practices. The public is entitled to observe the operations of its government and is not limited to simply having to take the word of the school system that race and sex “are inherent characteristics that have no bearing on [employees'] abilities and duties as public servants nor on their being hired or promoted nor on their rate of pay.” In short, the public's interest in monitoring the school system's actions and its employment practices with respect to all of its employees cannot be satisfied with mere statistical data which does not relate to any particular employee. Without receiving the information which the school system has not considered “private” for a number of years, the public cannot observe and understand the actions of the school system and exercise what the Legislature considers to be “a fundamental and necessary right of every citizen of the Commonwealth.”

Mr. Thomerson summarizes the Herald-Leader's position by stating that “information `of a personal nature' is that type of information which is not disclosed to the public as an inherent part of one's everyday life, i.e., home address, date of birth, social security number, etc. There simply is no reasonable expectation of privacy with respect to a person's gender and race. Again, even if there was, the public's interest in disclosure far outweighs any such privacy interest.”

We are asked to determine if the Fayette County Public Schools properly relied upon KRS 61.878(1)(a) in denying Mr. Fischer's request for information as to each individual employee's race and gender. For the reasons which follow, we conclude that, under the facts of this appeal, the agency properly withheld the requested information.

In analyzing the propriety of an agency's invocation of KRS 61.878(1)(a), authorizing the withholding of “[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy,” we begin with a determination of whether race and gender constitutes information of a personal nature. Only if there is a cognizable privacy interest in the information do we proceed to the second part of the analysis: determining whether public disclosure would constitute a clearly unwarranted invasion of personal privacy. Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992); Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994).

In OAG 91-202, this office held that the Kentucky Board of Nursing could withhold information relating to licensed nurses which is clearly personal in nature, such as age, gender and race, but was not required to do so. In 93-ORD-62, the issue was raised but not reached as the appeal was decided on other grounds. In that case, the Department of Personnel, relying on KRS 61.878(1)(a), denied in part a request for information indicating state employees's sex and race. The Department indicated that the sex and race of individual employees were deemed matters of personal privacy the disclosure of which would constitute a clearly unwarranted invasion of privacy. The Department explained that the information was provided at the applicant's option, and was used by the agency in developing Affirmative Action Plans and reporting to state and federal agencies. The Department stated it had adopted a policy of declining requests for gender and race data unless the requester's “need to know” was based on a statute or regulation.

Neither this office nor the Kentucky courts have address the issues before us in this appeal. However, the Appellate Court of Illinois, in CBS, Inc. v Partee, 556 N. E.2d 648 (Ill. App. 1 Dist. 1990), considered the issue of whether the race of a public employee, as recorded in a personnel file, was subject to disclosure under the Illinois Freedom of Information Act. A copy of that case is enclosed. Because the case addresses many of the issues and arguments advanced by the parties to this appeal, we find it instructive. An extensive discussion of the Illinois case follows.

The then-State's Attorney of Cook County, Richard M. Dailey, was a candidate for mayor of Chicago, and the question of the racial composition of his office became a political issue. CBS requested, under the Illinois Freedom of Information Act, information from the State's Attorney as to the names, race, titles, salaries, and dates of hire of all assistant State's Attorneys. The State's Attorney provided all the requested information but refused to identify any assistant State's Attorney by race.

CBS filed a complaint and the trial court held that the race of a public employee, as recorded in a personnel file, was not subject to disclosure under the Illinois Freedom of Information Act.

On appeal, the State's Attorney argued that the disclosure of racial information constitutes a clearly unwarranted invasion of the personal privacy of the assistant State's Attorneys. He stated that his office was required to keep records for the completion of a report, which contain the number of employees who are classified into five separate racial and ethnic groups, to be filed annually with the Equal Employment Opportunity Commission. The report contained only the aggregate numbers of each category and did not contain a racial designation for each separate assistant State's Attorney. The information provided in the report was made available to CBS, but it considered that information insufficient.

CBS argued that the race of all assistant State's Attorneys is self-evident and thus they could not reasonably expect that their race would be a matter of personal privacy.

In addressing this issue, the court, in part, quoted the following provision from the EEOC Compliance Manual:

Although identification of race, sex and ethnic status is an essential factor in determining compliance with various equal employment opportunity laws, an individual cannot be forced to identify him/herself by race, sex, or ethnic group. However, an exception to this general principle can be made where the information regarding race, sex, or ethnic group is necessary to determine an individual's or employee's eligibility to receive a benefit or to determine the amount of the benefit to which such person may be entitled. EEOC Compl. Man. (CCH) ¶ 5403, at § 632.3(b)(2)(iii)(Mar. 1987).

The court stated that although the race of the assistant State's Attorneys may be apparent in most cases, their occupation is not apparent to anyone other than those who deal with them professionally.

The court stated that whether or not the disclosure of race would constitute a clearly unwarranted invasion of privacy depended on the balancing of the public interest in knowing whether the assistant State's Attorneys were performing their duties or whether the State's Attorney was performing his duties and the privacy interests of the public employees. The court found that the trial court did not abuse its discretion in concluding that information regarding each individual assistant State Attorney's race would be an unwarranted invasion of privacy and, thus, exempt from disclosure under the Illinois Freedom of Information Act.

In support of this conclusion, the court held that the record supported a finding that the publication of the names and races together of the individual assistant State's Attorneys could constitute a substantial invasion of personal privacy. Among other things, the court reasoned that, although the race of the individuals may be apparent in most cases, the fact that it is not wholly private did not mean that the individuals had no interest in limiting disclosure or dissemination of the information. In addition, where the question of racial composition of the State's Attorney's office had become a political issue, it was not unreasonable for the assistant State's Attorneys to expect that a compilation of their respective names and races would be disclosed to the public at large. The court held that it also was not unreasonable to assume that many of the attorneys did not want their names and races to be drawn into a political dispute and, judging from the EEOC Compliance Manual, experience had shown that some individuals did not want to disclose their race even to the employment interviewer.

Additionally, the court held that the information as to each individual assistant State's Attorney's race that CBS sought was in no way relevant in determining whether each attorney or the State's Attorney was performing his duties.

Finally, the court acknowledged there was no easy answer as to whether alternate means of obtaining the requested information was available since, under the Illinois statute, exempt information may be disclosed if such disclosure is consented to in writing by the individual subjects of such information. The only other source available appeared to be assistant State's Attorneys themselves and the court could only speculate whether the attorneys would be willing to divulge the requested information. Based upon the record before it, the court was unable to conclude whether this factor weighed in favor of the plaintiff or the defendant.

In Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), 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 a 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 828 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 principal 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.

The fact that the employee's race or gender may be self-evident every time the person steps out of his or her home, as Mr. Thomerson argues, does not mean that the employee has no interest in the selective disclosure of this information. In Zink, at 828, the court stated:

As has been pointed out, however, when an individual enters on the public way, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent. See OAG 76-511. We also realize that telephone numbers and home addresses are often publicly available through sources such as telephone directories and voter registration lists. However, we think this information is no less private simply because that information is available someplace. We deal therefore, not in total non-disclosure, but with an individual's interest in selective disclosure.

Based upon the instruction and reasoning provided by CBS, Inc. v Partee, 556 N. E.2d 648 (Ill. App. 1 Dist. 1990); the cited language from the EEOC Compliance Manual; and past references by this office in OAG 91-202 and 93-ORD-62, we conclude that information such as an individual's race or gender is “generally accepted by society as details in which an individual has at least some expectation of privacy.” Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994). Both race and gender are inherent characteristics of the individual employee and are not directly indicative of how that employee is performing his or her public duties. As noted in the EEOC Compliance Guidelines cited above, an individual cannot be forced to identify himself or herself by race, sex, or ethnic group. Additionally, as the School District argues, it is likely that many individuals do not wish to make an issue of their race or gender.

In this instance, the alternative information provided by the school, that is, the computer printout with the statistical data of the specific number of salaried and hourly employees, by race and gender, is sufficient, at least in part, to satisfy stated concerns of monitoring the school system's hiring and employment practices with respect to all employees, as to race and gender.

Moreover, since we have concluded that an individual has at least some expectation of privacy as to his or her race or gender, a second alternative is available in which the requested information could be obtained by contacting each individual employee directly. Information provided by the school identified each employee by work location. This would enable a requester to contact employees directly and ask whether or not they wanted this information released. While it may be inconvenient and time consuming for a requester to use this method, it does provide a means in which an affected party (the individual employee) to the open records appeal can give his consent to the release of information which the public agency considers to be personal and private and to which the employee may or may not want disclosed.

The Kentucky Supreme Court has recognized that an affected individual may wish to decide for himself whether the release of information of a personal nature is appropriate. In Beckham v Board of Education of Jefferson County, Ky, 873 S.W.2d 575 (1994), the Kentucky Supreme Court determined that a person affected by the decision of a public agency to release records which he or she considers to be an unwarranted invasion of personal privacy has standing to contest the agency decision in circuit court. In that decision, the court stated, at pages 578 and 579:

. . . [W]e have recognized the personal privacy exclusion as an independent right of persons who were not even parties to the litigation and permitted their right to be asserted by the agency. We also recognize that the personal privacy was of sufficient importance to overcome the disclosure bias of the [Open Records] Act and that public interest and public curiosity were not always synonymous. Having so highly regarded the personal privacy exclusion, it would be anomalous if we should conclude that an affected party who may possess a right to have documents excluded lacks standing to assert that right.

In summary, we conclude that, under the facts of this case, the Fayette County Public Schools properly relied upon KRS 61.878(1)(a) in denying Mr. Fischer's request for information as to each individual employee's race and gender. Providing the requester with alternative information, through a computer printout, as to the specific number of employees at each location which included personnel totals by race and sex broken down by schools, salaried employees and hourly employees meets the principal purpose of the Open Records Act. This alternative information allows the citizen to monitor the functioning and operations of the public agency and to be informed as to what their government is doing.

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

1054

Enclosure

Distributed to:

James L. Thomerson

Stoll, Keenon & Park

Suite 1000

201 East Main Street

Lexington KY 40507-1380

Virginia Gregg

Fayette County Public Schools

101 East Main Street

Lexington KY 40502-1699