Before the Presiding Judges of the Administrative
Judicial Regions
Per Curiam Rule 12 Decision
APPEAL NO.: 08-004
RESPONDENT: John McMaster, Judge,
DATE: October
27, 2008
SPECIAL COMMITTEE: Judge
Petitioner requested personnel files of the official
court reporter for a county court at law from the judge of the court. The judge responded that he did not have her
personnel files, but that the requester might be able to obtain them from the
county’s human resources officer. The
judge said that he may have some communications that are responsive to the
request, but because they are exempt under Rule 12 he cannot provide them. He also provided the proper notice of her
right to appeal under Rule 12.
Petitioner then sent a second, more specific request
to the judge, requesting specific categories of documents, including the court
reporter’s job applications, performance evaluations, communications
with a certain party, records documenting any complaints about her, and records
stating the reasons for her separation from employment. The judge responded that he did not have any
job applications, performance evaluations, or communications between the court
reporter and the named party. He noted
that Petitioner might want to address the request for the communications
between the two named individuals to those individuals or to the county
information technology department. He
further stated that “there may be a memo or document regarding complaints about
[the court reporter] or her separation from employment,” but that none of the
documents could be redacted. He again
provided the information about appealing under Rule 12, and Petitioner
appealed.
Respondent argues that the appeal is untimely, because
petitioner should have appealed within 30 days of his denial of the first
request for the personnel file. Because
the second request was more specific than the first, we find that it was not a
duplication of the first request, and that the appeal was timely.
We first address the documents withheld by Respondent under
a claimed exemption and provided to us in
camera. He argues that they are
exempt under the provisions of Rule 12.5(c), 12.5(i), or 12.5(k). One is an “employee memo” to all of the
employees of the county court at law, stating the workday policies of the court
and signed by the judge and the three employees, including the court
reporter. Because we find the other
document to be exempt, we will not describe it in this opinion.
Respondent contends the documents constitute “any
personnel record that, if disclosed, would constitute a clearly unwarranted
invasion of personal privacy.” Rule
12.5(c). Although we are not bound by
interpretations of the Public Information Act (“PIA”) by the Office of the
Attorney General, we are guided by them, and the language of the personnel
records exemptions of Rule 12.5(c) and the PIA is similar. Information about public employees’ job
performance or the reasons for their dismissal, demotion, promotion, or
resignation is not exempt from disclosure under the personnel file exception of
the PIA. OAG Open Records Decision Nos.
444 at 5-6 (1986), 405 at 2-3 (1983). We
find that neither the employee memo documenting workday policies for a court
nor the other document at issue in this matter constitute information that
would constitute a clearly unwarranted invasion of personal privacy, so they
are not exempt under Rule 12.5(c).
Respondent contends the documents constitute
information that is confidential under other law, but he cites no state or
federal constitutional provision, statute or common law principle that would
render the documents confidential, and we are not aware of any. We find that they are not exempt under Rule
12.5(i).
Respondent contends the documents constitute “any
record relating to an investigation of any person’s character or conduct.” There is no indication that the employee
policy memo relates to an investigation, so we assume the exemption is claimed
only for the other document. We find that
it relates to an investigation of a person’s character or conduct and that it
is exempt under Rule 12.5(k).
As no exemption was established for the employee
policy memo, we grant the petition for access to it. We deny the petition for access to the other
document.
We next address the issue of the judge’s responses to
the requests for the court reporter’s personnel files and for communications
(including emails) between the court reporter and other individuals. The judge stated that he was not the
custodian of those records, and told the Petitioner to contact the human
resources department and the information technology department, respectively. The judge is the custodian of the judicial
records of his court, and the court reporter in question was appointed by him
as the official reporter of that court.
If the personnel files and the emails of the court reporter are records
of the court to which she was appointed, then the judge is the custodian of
those records, even if he has to ask for help from other county employees to
access them. If the judge is not the
custodian, but other county employees are the custodians, then Rule 12.6(f) requires
the judge to refer the requests to the other custodians and to notify the
requester in writing that he has referred them to the proper custodians. The rule does not permit the judge to merely
identify the custodians and require the requester to contact those custodians. In making the determination as to whether he
is the custodian, the judge should consider whether he wants to determine which
of the records are public and which are exempt, or whether he wants county
employees not under his supervision and with little knowledge of his court’s
operations to make those determinations.
Although the judge’s responses did not comply with Rule 12.6(f), we are
confident that the judge will reconsider and revise his response in light of
this opinion.