Request By:
Open Records Appeal
File Identification No. 90-91
Jim Malone
The Ashland Independent
226 - 17th Street
Ashland, Kentucky 41101James E. Armstrong, Esq.
Counsel for City of Russell
205 Harrison Street
Greenup, Kentucky 41144
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of January 11, 1990, Jim Malone, of The Ashland Independent, has appealed, under Open Records provisions, your January 10, 1990 response on behalf of the City of Russell, Kentucky, denying inspection of certain attendance records of a Russell police officer, which had been requested by Mr. Malone in a letter dated January 5, 1990, to Peggy Colvin, who is understood to be the City Clerk for the City of Russell.
KRS 61.880(2) provides, in substance and in part, that the Attorney General shall, upon request of one whose request to inspect a public record has been denied, issue a written opinion stating whether the denying agency acted consistent with Open Records provisions.
FINDINGS IN BRIEF
The City of Russell failed to act consistent with Open Records Provisions by failing to briefly explain how exceptions cited as a basis for denying inspection of public records, applied to such records, and by citing as a basis for denial of employee schedule, time and attendance, and sick leave records, exceptions that did not support a blanket denial of inspection of such records. The public is entitled to inspect employee time and attendance records that underlie public salary payments.
FACTUAL BACKGROUND
By letter of January 5, 1990, Jim Malone, of The Ashland Independent, asked under Open Records provisions, to:
[V]iew the work schedule and time card and sick leave record of time for Sgt. Roy Parsons on his Nov. 18, 1989 shift. I would like to look at and copy records that would show if Sgt. Parson came to work on Nov. 18, 1989 or if he turned in sick time for that day.
By letter of January 10, 1990, you responded on behalf of the City of Russell, indicating:
Please be advised that the information requested will not be provided as my client believes the records are excluded based on KRS 61.878(1)(a) and KRS 61.878(1)(f).
Further, my client believes that the request may violate the Federal Privacy Act.
Mr. Malone's appeal to this office followed.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
First, the City of Russell is a public agency subject to the Kentucky's Open Records provisions (KRS 61.870 to 61.884).
You responded on behalf of the City of Russell, by letter dated January 10, 1990, which is within the three working-day period established by KRS 61.880(1), within which a public agency is to indicate, in writing, whether inspection of records will be permitted. You cited specific exceptions from among those in KRS 61.878, as a basis for the City's denial of inspection, and you forwarded a copy of your denial to the Attorney General. These actions were consistent with KRS 61.870 to 61.884. However, you did not provide a brief explanation regarding how exceptions cited, applied to records withheld from inspection. In failing to provide such explanation, the City of Russell failed to act consistent with KRS 61.870 to 61.884.
Procedural considerations aside, the question is whether KRS 61.878(1)(a) and (f), cited as a basis for denial of inspection of the records as set forth above, are proper grounds for denying inspection. You also mentioned the "Federal Privacy Act" as a basis for the City's denial of inspection. We believe such bases do not support a blanket denial of inspection of the records Mr. Malone sought to inspect.
This office has long held that payroll records of public employees, including those of local public agencies are subject to public inspection. OAG 82-233; 86-38; 88-13; 90-30. We believe that just as the public is entitled to know how much a public employee is being paid from public coffers, so is the public (and the media) entitled to inspect time records of public employees to evaluate the basis of public expenditures for salary. We believe a governmental record regarding employee time and attendance, in relation to which public monies are expended, cannot be considered as being entirely of a personal nature, the disclosure of which would constitute an unwarranted invasion of personal privacy. A time and attendance record (e.g., work schedule, time card, sick leave claim, etc.,) operates as a bill or claim for public monies. Such records cannot be properly treated, as a whole, as being information of a personal nature, disclosure of which would constitute an unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a).
We do not agree with the City of Russell's claim that a given employee's work schedule, time card, or sick leave record may be withheld pursuant to KRS 61.878(1)(f). That exception authorizes a public agency to withhold from inspection, absent a court order:
Records of law enforcement agencies . . . compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication . . . .
We believe a work schedule, time card, or sick leave record of an employee, associated with normal recordation of times to be worked or worked, cannot be said to be "compiled in the course of detecting or investigating statutory violations," within the meaning of KRS 61.878(1)(f). At the most, such records, in the case of a police officer, would be termed as being compiled collaterally to investigatory assignments. In any event, any information contained upon such records that would harm the agency by revelation of informants, or by premature release in relation to a prospective law enforcement action or administrative adjudication, may be masked, and a copy of the records showing the officer's scheduled or actual time and attendance, and any sick leave claimed, may be provided. KRS 61.878(4).
We are not aware of a "Federal Privacy Act" that would operate to prevent disclosure of time and attendance records of an employee of state or local government in Kentucky.
The City of Russell failed to act consistent with KRS 61.870 to 61.884 by failing to provide a brief explanation of how exceptions cited as a basis for denying inspection of public records, applied to such records, and by making a blanket denial of inspection of employee time and attendance records, upon grounds do not apply, at least comprehensively, to records withheld from inspection.
The City of Russell should promptly arrange with Jim Malone for his inspection of the records he sought to view. Masking of confidential information (if any) upon such records, e.g., names of informants, the officer's social security number, home address, etc., may be carried out if necessary. A copy of the masked original may be provided to Mr. Malone for his inspection, and copying, should he want to do so.
The City of Russell may have a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Mr. Jim Malone.