Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the responses of the Office of the Warren County Attorney to a series of open records requests by Mr. Steve L. Monroe for certain records maintained by the Warren County Regional Jail.
In his first request, dated July 12, 1996, Mr. Monroe requested to inspect certain records of the jail, such as the jail's operational rules, State Inspector's files, and the law library log.
By letter dated July 16, 1996, Ms. Amy Hale Milliken, Assistant Warren County Attorney, on behalf of the jail, agreed to make the records available for inspection in the law library of the jail on consecutive Thursdays between the dates of August 8, 1996 to August 22, 1996 at 1:00 a. m. to 3:00 a. m. (In her response to issues raised in the letter of appeal, Ms. Milliken explains that these hours were times in which Mr. Monroe regularly used the jail's law library. )
Mr. Monroe, by letter dated July 17, 1996, responded that this review schedule was unacceptable to him and requested the dates be condensed and moved to an earlier date of reasonable hours and the time expanded. In addition, he amended his July 12 request by requesting to inspect the contract agreement and proprietorship of the canteen and the pay stubs and time sheets of officers Sherry Woosley and Sheila Fagan covering the last three pay periods.
By letter dated August 14, 1996, Mr. Monroe notified the County Attorney's Office that, even though he had been transferred from the jail (to the Roederer Correctional Complex, LaGrange, Kentucky), he still expected a response to his July 17 request. In addition, he requested a complete copy of all items listed in the July 17 request.
By letter dated August 19, 1996, Ms. Milliken responded to Mr. Monroe's August 14 letter, indicating that the jail was in the process of gathering all the information which the jail had previously indicated it would make available, prior to his transfer. She informed him that the jail would be charging him five cents per copy and any additional mailing fees associated with the request. She further informed him that she would write him again, advising as to the exact amount of copies, the mailing charges, and that payment would be required prior to his being mailed the copies. Finally, she advised him that his request involved approximately 350 to 400 copies being made and if he would like to limit that amount or to revise his request, to let her know within the next three days so that she could prevent any unnecessary work for the staff at the jail.
In a note attached to his letter of appeal, Mr. Monroe states that on August 26, 1996, he replied to Ms. Milliken that he was able to pay for all copies requested as soon as she relayed the amount due.
Apparently, Mr. Monroe was transferred again. By letter dated September 30, 1996, from Bell County Forestry Camp, Pineville, Kentucky, he renewed his request for jail records relating to the law library log, the contractual agreement and proprietorship of the canteen, and the pay stubs and time sheets of Sherry Woosley and Sheila Fagan.
By letter dated October 7, 1996, Mr. Monroe requested a copy of the correspondence file between Ms. Milliken and him from July 12 to October 7, 1996.
On October 29, 1996, we sent a "Notification of Receipt of Open Records Appeal" and enclosed a copy of Mr. Monroe's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, the County Attorney's Office provided this office with a response to the issues raised in this appeal.
In that response, Ms. Milliken indicates that on July 16, 1996, the jail notified Mr. Monroe that the requested records would be made available for his inspection. Ample time was to be provided for his review in order to alleviate the requirement of having the staff copy the data. She states that after receiving his July 17, 1996 letter regarding a revision of the date and time he could review the material, she was informed that he had been transferred from the jail and assumed that he would no longer be available to review the records and, thus, did not respond to the letter.
Upon being notified that he still wanted copies of the records, the jail began the process of making them available. However, since Mr. Monroe had been transferred, the jail takes the position that it does not have to mail him copies of records requested by mail, but only has to make the records available for his inspection.
In the alternative, the jail takes the position that, if it must mail the records, the pay stubs for Sherry Woosley and Sheila Fagan are exempt from disclosure because the stubs contain more information than the amount of money in which the employee is paid, such as social security number, etc., and the release of such information would constitute an invasion of the employee's personal privacy.
We are asked to determine whether the responses of the Office of the Warren County Attorney are consistent with the Open Records Act. For the reasons which follow, we conclude that the responses were consistent in part and inconsistent in part with the Act.
Until the time of Mr. Monroe's transfer, the jail was in substantial compliance with the Open Records Act by attempting to make the records available for Mr. Monroe's inspection at a time and place convenient to him. However, after his transfer from the jail, the responses were inconsistent with the Act.
In 1992 the General Assembly amended the Open Records Act to provide for the mailing of precisely described records, which are readily available within the public agency, upon written request and without inspection. KRS 61.872(3) provides:
(3) A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
The amendment represented a radical departure from prior open records law relative to requiring inspection in advance of providing copies. Thus, if the applicant resides outside the county in which the public records are located, he cannot be required to inspect the records as a precondition to receiving copies, unless he is unable to precisely describe them or they are not readily available within the agency. KRS 61.872(3)(b).
Thus, we conclude that the response that Mr. Monroe must review the requested records before they could be mailed is inconsistent with the Open Records Act. In the instant case, Mr. Monroe's description of the records he sought was sufficiently specific for the jail to identify and produce. However, when copies are requested, the agency may require advance payment, including postage, prior to mailing the copies. KRS 61.874(1). Accordingly, the records requested by Mr. Monroe should be made available to him upon receipt of all copying fees and the cost of mailing.
As to the issue relating to the pay stubs of the two public employees, this office has held that under the Open Records provisions, there may not be a general or blanket denial of inspection of public records, such as payroll vouchers and check stubs. In most situations such records contain some information subject to public inspection and some material which may be excluded from public inspection. Salaries of officers and employees of public agencies are matters in which the public has an interest and are subject to public disclosure. OAG 76-717. In OAG 88-13, we held that materials setting forth information as to amounts withheld from pay checks of public employees such as taxes, insurance, retirement and savings are within the privacy exception to public inspection under KRS 61.878(1)(a).
KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
When a public record contains information of an excepted and nonexcepted nature, the public agency must provide access to the nonexcepted material either by providing a copy of the record with the excepted material deleted, or by providing a list containing the nonexcepted information as derived from the records in its files. 93-ORD-59.
Accordingly, we conclude the blanket denial to this portion of the request was inconsistent with the Open Records Act. Under KRS 61.878(4), the jail has the option of making the pay stubs available for inspection and redacting any excepted material contained in the records or preparing a list containing the nonexcepted information. OAG 89-97. Both of these options satisfy the inspection requirements for requested records which contain both public and nonpublic information. The agency may exercise its discretion in selecting the method of making these requested records available for inspection.
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.