Request By:
Ms. Phyllis Highley
Executive Secretary
Kentucky Public Employes
Compensation System
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General as to whether the Treasury Department of the State "has the right to reveal information regarding deferred compensation deductions in order for another company to compete with the State's plan." You further ask if the Treasury Department violates KRS 61.878(1)(a) if it releases such information.
Put another way, your question is whether a state law is violated if the State Treasurer allows such information to be released. Our answer is that no law is violated if such information is made available to the public. OAG 79-275; 82-233.
Exemptions to the mandatory Open Records requirement provided by KRS 61.878(1) are permissive and not mandatory. A public agency can adopt a policy of not allowing inspection of exempt records but no law is violated if the exemption is ignored and the records are released.
In OAG 82-233 (copy enclosed) we discussed this same question in regard to information of payroll deductions for tax sheltered annuities. We pointed out that if an agency withholds from inspection records which are exempt from mandatory disclosure, it should do so by a consistent policy and should treat all requests the same regardless of who the requester may be. We said:
"Since a public agency is required to make records available for inspection without regard to the purpose for which the requester wants to see the record, an agency should have a definite policy as to when it will invoke one or more of the exemptions in KRS 61.878(1). In other words, the exemption should be invoked according to the nature of the record and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. "
It is not the concern of the Treasurer whether the records of deferred compensation deductions are requested by someone wanting to compete with the Kentucky Employes Deferred Compensation System or for some other purpose. The Treasurer should have the same policy on making the information available regardless of who makes the request.
Deferred Compensation deductions from the pay checks of public employees are information of a personal nature where the public disclosure thereof would constitute clearly an unwarranted invasion of personal privacy and as such they come under the exemption in KRS 61.878(1)(a). The Treasury Department can adopt a policy of withholding such information from all requesters.