Request By:
Mr. William Morison
Director
University Archives
University of Louisville
Louisville, Kentucky 40292
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
The Courier-Journal and Louisville Times Company, by its attorney Jon L. Fleischaker, has appealed to the Attorney General pursuant to KRS 61.880 the denial of a request to inspect certain public records in your custody. The request was made by a reporter for the Louisville Times, Marilyn M. McCraven, and was worded as follows:
"Under the provisions of the Kentucky Open Records Law, I request to inspect and copy all lists or records of University of Louisville faculty and staff members who have been laid off since May 1, 1982. I also request all lists or records of faculty and staff who have been notified that they will be laid off at a future date.
"I request access to those lists or records containing those persons' names, ages, addresses, job titles, divisions of the University where they were or are presently employed, salaries and whether they have been rehired in other positions by the University."
"For those rehired, I request their former and present job titles, former and present salaries, former and present employment divisions, former and present job status (part-time, full-time, temporary etc), and former and present job benefits.
"I also request the lists or records that would designate laid off faculty members as tenured or non-tenured. "
A response was made on your behalf by Robert J. Morrison, Assistant University Counsel, by letter dated August 9, 1982, denying access to the requested records under the exception in the Open Records Law provided by KRS 61.878(1)(a), public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. The response stated that the University was refusing to disclose personally identifiable information on laid off employees but was offering to provide non-personally identifiable statistical information on the subject of the request and non-exempt information on individual employees named by the requester.
In his letter of appeal, Mr. Fleischaker points out that we have said in OAG 76-717 and OAG 79-469 that the public is entitled to know the name, position, work station and salary of any public employee. He states his opinion: "Of course, whether an individual continues to work for the University, or has been laid off, is the same type of information which should be publicly available. Employment by a public agency (or lack of employment) is not a 'private' matter."
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your response to the request to inspect the described records is consistent with the Open Records Law, KRS 61.870-61.884. We believe that your offer of statistical data and non-exempt information on named employees, provided you also provide such information on former employees, fully comports with the provisions of the Open Records Law.
The request we are dealing with here is broad, complex and touching many facets of the Open Records Law. We will discuss in particular the various items of the request:
1. The request is to inspect and copy all lists or records of University faculty and staff members who have been laid off since May 1, 1982 and all lists or records of faculty and staff who have been notified that they will be laid off at a future date. The response does not state whether the University has compiled such lists. An agency is not required to compile a list which does not exist. OAG 76-375.
2. As Mr. Fleischaker stated, in OAG 76-717 and OAG 79-469, we said that the public is entitled to know the name, position, work station and salary of a public employee. We also said in those opinions that a public employee is entitled to privacy as to his personal life including his home address. Therefore, when the newspaper reporter in this case requested information as to the age and address of present and former employees she was asking for information of a personal nature which is made exempt from mandatory public disclosure by KRS 61.878(1)(a) and, to that extent, you were correct in relying on that statutory provision in denying the request. That provision authorizes the University to refuse to open up its original records which include matters of personal privacy to unrestricted inspection by the requester. Your offer to provide non-exempt information on named individual employees, which presumedly would inform the requester of the name, position, work station and salary, satisfied the requirements of the law.
3. A request to inspect records showing personnel action taken by the University during a specified period laying off and/or rehiring should be honored subject to the exclusion of private matters.
4. This brings us to the qualifying of our approval of your denial because of the form of the request and its unlimited scope. This also causes us to qualify what we have said about an agency not being required to prepare a list. In OAG 82-234, we suggested that a public agency might want to prepare a list "simply because it might be more convenient to the agency and to the public than submitting the records to individual public inspection. " Since a public agency is required by KRS 61.878(3) to separate excepted material from non-excepted and make the non-excepted material available for examination, it may be more convenient for the University to prepare a list of layoffs during a reasonably limited period. We believe that the period from May 1, 1982 to the present is a reasonable limited period.
5. In regard to that portion of the request to inspect "lists or records that would designate laid off faculty members as tenured or non-tenured" we believe that such contract status is a public matter and you should comply with the request.
In summary, it is our opinion that your response to the request as presented was permissible; that if a request is made to inspect personnel action laying off, hiring or rehiring faculty and staff during a reasonable period, the request should be granted either by allowing inspection of records after private matters have been deleted or by preparing a list of non-exempt information; we recognize as non-exempt information the name, position, salary and period of employment of each person subject of personnel action during a reasonable specified period.
A copy of this opinion is being sent to the requester as directed by statute.