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Public employee evaluations can be released

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NEWS MEDIA UPDATE   ·   KENTUCKY   ·   Freedom of Information   ·   April 6, 2006

NEWS MEDIA UPDATE   ·   KENTUCKY   ·   Freedom of Information   ·   April 6, 2006

Public employee evaluations can be released

  • The state’s appeals court ruled that the records can be made available to the public on a case-by-case basis if the public’s interest is strong enough.

April 6, 2006  ·   Evaluations of public employees may be released under Kentucky’s Open Records Act when the public’s interest in public employees’ job performances outweighs the employees’ privacy rights, the state Court of Appeals ruled Friday.

A unanimous three-judge panel overturned a ruling by the Jefferson Circuit Court in Louisville, and for the first time allowed for any public employee’s evaluation to be made available. Previously, only evaluations of agency heads could be released.

“We view this as a substantial victory,” said Jon Fleischaker, who represented The Courier-Journal in Louisville in its fight for the documents. “It’s a substantial change in the ability to get evaluations of managers of agencies.”

The newspaper sought the employee records following an investigation of two Louisville Metro Parks employees in connection with the disappearance of more than 500 pairs of athletic shoes donated to the department for needy children. The evaluations concerned former park employee Rob Roberts, who was prosecuted for diverting and selling a large number of the shoes, and his supervisor Brigid Sullivan, the former department director. Sullivan eventually resigned over the matter.

“The public interest in knowing what a city evaluator thought of the job performance of a supervisor of a person who used his position to commit a crime outweighs the privacy interest of the person in keeping that information private,” Judge Julia Kurtz Tackett wrote for the court.

The change regarding release of evaluations is important, Fleischaker said. “One, you can see how people are doing in their jobs, and two, it gives a chance to evaluate the people doing the evaluations. It gives the public a chance to weigh in,” he said.

The newspaper requested from the city several records, which were all provided except for the evaluations. The city argued the evaluations to be exempt from the Open Records Act in accordance with the existing attorney general opinions. In a specific opinion in this matter, requested by the newspaper, the attorney general agreed that the records were exempt from release. The trial court also found the records exempt from disclosure.

It is important to the city to keep these evaluations from the public for “basic confidentiality” reasons, said Bill Patteson, a spokesman for the Jefferson County attorney’s office, which defended the case on behalf of the city. “It’s like giving out home phone numbers to the public — from an individual safety aspect, we want to keep those personal records confidential.”

The appellate court determined that in each case, whether to release the records depends on balancing the public’s interest in the document with the privacy interests of the person whose information is contained within the document. The court agreed with the Courier-Journal‘s suggestion that redacting sensitive personal information contained in the evaluations would satisfy privacy concerns.

“[I]n this case, redaction is the best solution,” Tackett wrote. “A bright-line rule completely permitting or completely excluding from disclosure public employees’ performance evaluations is at odds with existing law, and so we conclude that in this case, limited disclosure with redactions is warranted.”

The court noted the importance of shedding light on operations of a public agency in which one of its employees used his position there to commit a criminal act.

Patteson said the city has not announced whether it will seek review of the decision by the Kentucky Supreme Court.

(Cape Publications v. City of Louisville, Media counsel: Jon Fleischaker, Dinsmore & Shohl, Louisville, Ky.)CZ

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