Request By:
Richard L. Ross, R.Ph.
Executive Director
Kentucky Board of Pharmacy
1228 U.S. 127 South
Frankfort, Kentucky 40601-4330
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Ann M. Sheadel Director, Civil and Environmental Law Division
Kimberly K. Greene, attorney for The Courier-Journal, has appealed your denial of The Courier-Journal reporter Deborah Yetter's request to have access to certain salary information from the Kentucky Board of Pharmacy ("Board").
By letter addressed to you on July 12, 1990, Ms. Yetter asked to be given: (1) the annual salary of the Board's executive director; and (2) the annual salaries of the Board's three pharmacy inspectors. Ms. Yetter's letter stated that she was making this request pursuant to Kentucky's Open Records Act. You responded to this request by letter on July 17, 1990, stating that this information would be obtained more appropriately from the Department of Personnel. Ms. Yetter replied to your letter on July 18, 1990, and indicated her belief "that state law requires that you either provide the requested information or declare the material to be exempt from the open records law and cite the applicable statute." On July 20, 1990, you wrote to Ms. Yetter and reiterated your position that the information would be obtained more appropriately from the Department of Personnel; you enclosed the proper open records request form and provided the address and fax number for that Department.
By letter of July 30, 1990, Ms. Yetter's attorney, Kimberly K. Greene, appealed your refusal to provide Ms. Yetter with the requested material and asked this Office for an opinion that you violated the provisions of the Open Records Act, KRS 61.870 to 61.884.
OPINION OF THE ATTORNEY GENERAL
Kentucky's Open Records Act provides that "[a]11 public records shall be open for inspection by any person, except as otherwise provided" in the Act. KRS 61.872(1). "Public records" are documentary materials, as defined in KRS 61.870(2), that are prepared, owned, used, in the possession of, or retained by a public agency.
When the Board receives an application to inspect public records, and the Board has custody and control of the requested public records, the Board is required by the Open Records Act to notify the applicant in writing of its decision either to comply with the request or to deny the request. If the Board decides to deny access to the public records, the written notification to the applicant "shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " KRS 61.880(1). When the Board receives an application to inspect public records, but the Board does not have custody or control of the requested public records, then the Board "shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him." KRS 61.872(3).
In your letters to Ms. Yetter, you referred Ms. Yetter to the Department of Personnel and provided her with the Department's open records form as well as the Department's address and fax number. This was an appropriate response to Ms. Yetter if the Board does not, in fact, have custody or control over any public record that contains the requested salary information.
In this situation, however, it is our understanding that the Board does have custody or control over some public records that contain the requested salary information. According to the requirements of the Open Records Act, the Board should have given Ms. Yetter either: (1) access to the records; or (2) a statement of the specific exception(s) authorizing the withholding of the records. There is no specific exception in the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. 1
We do not know the exact nature of the documents that are within the Board's custody or control and that contain the requested salary information. Therefore, it is possible that these documents could contain information that may be excluded from disclosure pursuant to KRS 61.878. If the Board believes that that is the case, the Board should respond to Ms. Yetter pursuant to the requirements of KRS 61.880 and specify what exception authorizes the withholding of the information, explaining how the exception applies to the information withheld. We point out for your information that salaries of public employees are not exempt from disclosure under the Open Records Act; if the documents that are within the Board's custody or control and that contain the requested salary information also contain information that the Board believes should be excepted from disclosure, the Board "shall separate the excepted and make the non-excepted material available for examination." KRS 61.878(4).
In any event, you should immediately contact Ms. Yetter: (1) to give her access to the records that are within the Board's custody control and that contain the requested salary information; and (2) to explain, if any information in the records is withheld, what exception in the Open Records Act authorizes the withholding of that information. 2
As required by statute, a copy of this opinion is being mailed to Kimberly K. Greene, who requested it. You have the right to initiate further proceedings in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Footnotes
Footnotes