U Memo 18-6Posted on Apr 30, 2018 in Informal Opinions - UIPA Opinions
U Memo 18-6
April 30, 2018
Superintendent’s Annual Evaluation
On behalf of the Board of Education (BOE), its then Chairperson sought an opinion on whether the Superintendent of the Department of Education’s (Superintendent) annual evaluation report must be disclosed upon request, and whether the worksheets prepared by the Superintendent or the BOE or both in the course of the annual evaluation process must be disclosed upon request, under Part II of the UIPA.
Information in an agency’s personnel file carries a significant privacy interest, as do personal evaluations generally. HRS § 92F-14(b)(4) and (8). Thus, government employee evaluations, being both personal evaluations and agency personnel file information, typically can be withheld from public disclosure as there is not typically a public interest in disclosure strong enough to outweigh the employee’s significant privacy interest in the evaluation. For high-ranking officials with substantial responsibilities, though, the balance of interests changes. OIP has previously found a diminished privacy interest, and a heightened public interest, in the evaluation of the University of Hawaii president, concluding that the evaluation could not be withheld under the UIPA’s privacy exception. OIP Op. Ltr. No. 04-07. In that opinion, OIP found that the president had a diminished privacy interest, whereas the public had a heightened interest in his performance, due to his extensive responsibility and high compensation.
Like the University of Hawaii president, the Superintendent is the head of her agency, the DOE, and she oversees a budget greater than that of the University of Hawaii. The Superintendent also oversees considerably more campuses than the University of Hawaii president, as the DOE has 15 complex areas and 256 schools. Because the Superintendent, as the head of her agency, oversees a larger budget and organization than the University of Hawaii president, although with a lesser salary, OIP finds that the balance between individual privacy interest and public interest in disclosure regarding the Superintendent’s performance is similar to that for the University of Hawaii president. See also OIP Op. Ltr. No. 95-24 at 13 (concluding that the public interest in agency management survey reports outweighed the agency managers’ privacy interests).
Consistent with the approach taken by most other states and with OIP’s prior conclusion regarding the evaluation of the University of Hawaii president, OIP found that the Superintendent has a diminished privacy interest in her annual evaluation report, whereas the public disclosure interest is heightened. As a result, OIP concluded that the public interest in disclosure outweighs the Superintendent’s privacy interest, so the Superintendent’s annual evaluation report must generally be publicly disclosed. However, if the annual evaluation report includes specific information that, by its nature, has a heightened privacy interest, such information would carry a greater privacy interest and therefore could still be redacted based on the UIPA’s privacy exception. For example, redactions could include information of a purely personal nature not directly related to the Superintendent’s performance, such as the details of a Superintendent’s illness, substance abuse, or family problems that had affected the Superintendent’s performance. In such a case, the detailed information about the nature of the Superintendent’s medical or family situation could be redacted, while still disclosing the existence of a medical or family issue and its effect on the Superintendent’s performance.
As for the final version of the worksheets prepared by the Superintendent and the BOE, which determines the ratings in the annual evaluation report based on a fixed mathematical formula, OIP also determined that the final worksheets must also be disclosed upon request, subject to redaction of any information that by its nature has a heightened privacy interest that is not outweighed by the public interest in disclosure. Id. However, draft or preliminary versions of those or similar worksheets, whether prepared by the full BOE or individual BOE members or the Superintendent or others, may be withheld based on the deliberative process privilege, which falls within the UIPA’s frustration exception. HRS § 92F-13(3).