Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Jefferson County Air Pollution Control District's denial of Gary Wadley's October 2, 1996, request for copies of District employees Mitzi Powell's and Jon Trout's weekly time sheets for various dates extending from April, 1996, to October, 1996. Relying on KRS 61.878(1)(a) and (j), Mr. Trout denied Mr. Wadley's request. Mr. Trout stated that the time sheets are "personal and preliminary records," and "as such, . . . are exempted under District Regulation 1.07, sections 6.3.1 and 6.3.8. . . ." It was his position that "the only final official public records are the Monthly Attendance Reports signed by the Employee, the Supervisor, and the Department Executive and forwarded by the District to the Personnel Department. " This appeal followed.
In his letter of appeal, Mr. Wadley references earlier opinions of this office in which we held that refusal to disclose time sheets constitutes a violation of the Open Records Act. He notes that the weekly time sheets record specific hours worked, and contain a signature attesting to their accuracy. Examination of these records, he maintains, "is critical to the public for the determination of questionable attendance, compensatory time, vacation time, various excused and unexcused absences, and financial disbursement."
In a follow-up letter to this office, Gaylord B. Ballard, an attorney representing the Air Pollution Control District, elaborated on the District's position. His argument was premised on the notion that because the weekly time sheets are maintained only to provide information for the monthly attendance records, and are not submitted to the personnel department, or subject to a retention requirement (other than one that is self-imposed), they are unofficial and preliminary. In addition, Mr. Ballard notes that prior opinions of this office suggest that it is the "documentation that wages are based upon . . . [that are] of concern." Since monthly attendance records "confirm[] public funds expended for public service, " and the privacy rights of public employees must be recognized and afforded protection, the rights of the employees whose weekly time sheets Mr. Wadley seeks are superior to Mr. Wadley's interest in disclosure. Mr. Wadley, Mr. Ballard notes, is a disgruntled employee facing disciplinary action whose "request was a vicious personal attack . . . on Ms. Powell and Mr. Trout. . . . [and] has nothing to do with the public good or the public's right to expect the District to execute its statutory functions properly. [Citation omitted.]"
We are asked to determine if the Jefferson County Air Pollution Control District properly relied on KRS 61.878(1)(a) and (j) in denying Mr. Wadley's request for Mr. Trout's and Ms. Powell's weekly time sheets. For the reasons set forth below, and upon the authorities cited, we conclude that the District violated the Open Records Act in denying Mr. Wadley's request.
We begin by noting that this office does not recognize a distinction between official and unofficial, or formal and informal, time sheets. KRS 61.870(2) defines the term "public record" as:
All books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.
Given this expansive definition, there can be little doubt that a weekly time sheet prepared by a public employee for submission to a supervisor or district director is a public record, within the meaning of KRS 61.870(2), notwithstanding the fact that there is no formal records retention requirement applicable to it, and that it does not find its way into the official personnel file maintained by the personnel department. Unless these weekly time sheets fall squarely within the parameters of one or more of the exceptions to public inspection, codified at KRS 61.878(1)(a) through (1), they are subject to public inspection.
We believe that the District's reliance on KRS 61.878(1)(j) is misplaced. That exemption authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
KRS 61.878(1)(j) "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations, " and has been interpreted to authorize the nondisclosure of preliminary recommendations of personnel within the agency. 94-ORD-132, p. 3, citing OAG 86-64, OAG 88-24, OAG 88-85, OAG 89-39, OAG 90-97. The purpose underlying the exemption is discussed at page 4 of OAG 88-85, in which this office observed:
Recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
Simply stated, we fail to see how weekly time sheets reflecting total hours an employee worked, start and stop times, hours off, reasons for absences, and compensatory hours earned, which are signed by the employee and his or her supervisor to verify their accuracy, can be characterized as a preliminary recommendation or memorandum in which opinions are expressed. We are not persuaded that the disclosure of weekly time sheets will discourage communication between subordinates and their superiors, or otherwise compromise the District's internal decision-making process. We also reject the District's argument that the individual employee's interest in the nondisclosure of their weekly time sheets is superior to Mr. Wadley's interest in retaliating against Mr. Trout and Ms. Powell, and thus that disclosure would constitute a clearly unwarranted invasion of personal privacy. An analysis of the propriety of an agency's invocation of the privacy exemption begins with a determination of whether the information contained in the records withheld is of a personal nature.
Kentucky Board of Examiners of Psychologists v Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324 (1992). We do not believe that information relating to time spent in public services meets this threshold requirement. See, e.g., OAG 84-161, p. 2, "The time a public employee spends in performance of public service which is compensated by public funds is directly related to public employment performance. As such, no personal privacy is involved and no protection against an unwarranted invasion thereof is required"; OAG 86-55, p. 3, "The privacy exemption applies only to matters unrelated to the performance of a public job"; OAG 91-176, p. 3, 4, "Attendance sheets verify that . . . employees were present and on the job during any particular time period, and are not protected by the privacy exemption. " It is safe to say that nothing in those records "touches upon the personal features of private lives."
Zink v Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994). Public employees do not, therefore, have a reasonable expectation of privacy in their weekly, or monthly, time sheets.
Assuming, for the sake of argument, that the time sheets do contain information of a personal nature, we believe that a public employee's privacy interest in their nondisclosure is outweighed by the public's interest in determining whether "public servants are indeed serving the public." Zink at 828, 829, citing Board of Examiners at 328. As this office observed in OAG 84-161, p. 2:
Section 3 of the Kentucky Constitution provides that public emoluments or privileges may only be granted in consideration of public service. A public employee is therefore accountable to provide public service in exchange for the receipt of a wage payment from public funds. This accountability is established through the employee's time sheet. On that time sheet, the public employee verifies that he performed public service on certain hours and days, that he received compensatory time for public service worked above the standard workweek, and that he did not perform public service on certain hours and days and thereby forfeited vacation leave or sick leave. The time sheet thereby represents a confirmation of public funds expended for public service. It should therefore be available for public inspection under the Open Records law.
In our view, the public's right to know is superior to the employees' privacy interest, real or imagined.
Nor does Mr. Wadley's purpose in seeking access to the time sheets have any bearing on our analysis. At page 828 of Zink v Commonwealth , the Court of Appeals opined:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act.
Inasmuch as disclosure of weekly time sheets would further the public's ability to know what their government is doing, and thus subject agency action to public scrutiny, we believe the time sheets must be disclosed to Mr. Wadley, his identity and motives notwithstanding.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.