NOT TO BE PUBLISHED
96-ORD-275
December 23, 1996
In re: Keith R. Cullinan/City of Louisville
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Louisville's denial of R. Keith Cullinan's September 18, 1996, request to inspect “such records as will reflect the job performance evaluations (if any) for the following City of Louisville employees for the years 1991 to date: 1. Barbara Kalkhof(;) 2. Earl Mac Unger[.]” Mr. Cullinan requested that the city “take note of the recent case of Beckham v Board of Education of Jefferson County” [1] in considering his request.
On behalf of the City of Louisville, senior attorney Paul Guagliardo responded to Mr. Cullinan's request. Relying on KRS 61.878(1)(a), (i), and (j), and 94-ORD-54 and 94-ORD-132, Mr. Guagliardo denied the request, expressing the view that the Beckham [2] case “affirm[s] Ms. Kalkhof and Mr. Unger's interest in the matter.”
In his letter of appeal, Mr. Cullinan argues that the Beckham decision to which he is referring is that of Jefferson Circuit Court Judge Ken G. Corey, on remand from the Kentucky Supreme Court and Court of Appeals, and, in particular, Judge Corey's statement that teachers “have no privacy interest in information concerning the performance of their public duties.” In a follow-up letter to this office, Mr. Guagliardo counters that the published decision in Beckham “does not negate the privacy interests of public employees as Mr. Cullinan suggests . . . [but recognizes that] they have standing to assert privacy rights which may exist.” With respect to Judge Corey's decision, Mr. Guagliardo notes that that decision “is on appeal to the Kentucky Court of Appeals . . . [and] is non-binding, non-precedential and, most significantly, pertains to different records.”
We are asked to determine if the City of Louisville properly relied on KRS 61.878(1)(a), (i), and (j) in denying Mr. Cullinan's request for Ms. Kalkhof and Mr. Unger's performance evaluations for the years 1991 to the present. For the reasons set forth below, and upon the authorities cited, we conclude that the city properly denied the request.
As the City of Louisville correctly observes, this office has long ascribed to the view that a public employee's right of privacy in his or her evaluation is superior to the public's interest in inspecting that evaluation. [3] The Attorney General has departed from this view on only the rarest of occasions. See, 92-ORD-1145 (dealing with the performance evaluation of a school system superintendent) and OAG 90-1 (dealing with the annual evaluation of the chief of the Louisville Police Department, and turning on the existence of a city ordinance directing publication of the evaluation). On these rare occasions, we have scrupulously attempted to avoid establishing a rule of general application vis-a-vis performance evaluations. Thus, in 92-ORD-1145 we expressly held:
[W]e [do not] 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.
92-ORD-1145, p. 4.
As recently as November 22, 1996, the Attorney General affirmed this view. In 96-ORD-256, we declined to extend the reasoning of 92-ORD-1145 to administrative evaluations of school district principals. Resolution of this appeal, rendered after the Jefferson Circuit Court's decision in Beckham v Board of Education, turned on the line of precedents reaching back to 1977, and this office's recognition that “[i]f changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the Court.” OAG 80-54, p. 4.
Further, the non-final, non-binding, and non-precedential circuit court ruling in Beckham dealt with disciplinary records of public employees, and is therefore inapposite. This office has consistently held that the privacy exemption cannot be invoked to protect a public employee against whom disciplinary action has been taken. OAG 78-133; OAG 88-25; OAG 91-20; OAG 91-41; OAG 92-17; OAG 92-34; 92-ORD-1515; 95-ORD-47; see also, City of Louisville v Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658 (1983); Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times Co., Ky. App., 663 S.W.2d 953 (1983); Kentucky Board of Examiners of Psychologists v Courier-Journal, Ky., 826 S.W.2d 324 (1992). Thus, while we concur with the court's conclusion that a teacher, or public employee, generally, “can have no realistic expectation that unprofessional or inappropriate conduct will be protected from public exposure,” Beckham, No. 92-CI-06747, p. 5, we do not believe that a public employee's right of privacy is entirely forfeited. Clearly, a public employee has a reasonable expectation of privacy in matters unrelated to his or her public employment. In our view, and as we have amply demonstrated, that reasonable expectation of privacy also extends to his or her performance evaluation. Our conclusion is not altered, but instead finds support in Beckham v Board of Education, supra.
Accordingly, we find that the City of Louisville properly relied on KRS 61.878(1)(a) in denying Mr. Cullinan's request. Because this exemption authorizes nondisclosure of the performance evaluations, we do not address the application of KRS 61.878(1)(i) and (j) to these records.
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 L. Bensenhaver
Assistant Attorney General
1384
Distributed to:
R. Keith Cullinan
1406 Browns Lane
Louisville KY 40207
Paul V. Guagliardo
Senior Attorney
City of Louisville
Department of Law
City Hall, Suite 200
Louisville KY 40202
[1] Beckham v Board of Education, No. 92-CI-06747 (Jefferson Circuit Court, Division 11, 8-9-96) appeal docketed 8-15-96, No. 96-CA-2298.
[2] Beckham v Board of Education, Ky., 873 S.W.2d 575 (1994).
[3] Thus, in 94-ORD-54 we reasoned: 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 83-286; OAG 86-15; OAG 89-90. In OAG 77-394, we stated:The evaluation of [and employee's] performance is a matter of opinion and does not constitute any action on the part of the [agency]. We believe that the [employee] is therefore entitled to have such information withheld from the public. The action which the [agency] takes in light of the evaluation is what the public is entitled to know. OAG 77-394, p. 2. Moreover, we have acknowledged that the privacy interests protected are as much those of the evaluator as those of the person being evaluated inasmuch as the evaluator generally makes his evaluation with the understanding that it will be kept confidential OAG 79-348; OAG 86-15. 94-ORD-54, p. 3.