TO BE PUBLISHED
97-ORD-85
May 27, 1997
In re: Steve Rock/University of Kentucky
Open Records Decision
The question presented in this appeal is whether the
University of Kentucky violated provisions of the Open Records
Act in partially denying Kansas City Star reporter Steve Rock's
February 15, 1997, request for "University-related public
documents required to be on file in the school's athletic
department." Among other things, Mr. Rock requested
"copies of records -- required by NCAA bylaw 11.2.2 to be in
writing -- of all athletically related outside income (i.e.,
[sic] shoe deals) or benefits for all members of the athletic
department." Although the University of Kentucky released
some 470 pages of documents in response to Mr. Rock's request,
including "Request for Approval for Outside Athletically
Related Income" forms for 1995 - 96, the University masked
the amounts and sources of outside income which appeared on the
forms pursuant to KRS 61.878(1)(a), arguing that disclosure would
constitute a clearly unwarranted invasion of personal privacy.
For the reasons which follow, we find that the University
properly relied on KRS 61.878(1)(a) to authorize nondisclosure of
the amounts of outside athletically income, but that KRS
61.878(1)(a) does not authorize nondisclosure of the sources of
that income.
KRS 61.878(1)(a) permits public agencies to withhold:
Public records containing information of a personal nature
where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.
In an early open records decision, the Kentucky Court of
Appeals developed a standard by which to judge the propriety of
an agency's invocation of the personal privacy exemption. Board
of Education of Fayette County v Lexington-Fayette Urban County
Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981). At
page 111 of that decision, the court observed:
[W]e should point out that we do not subscribe to the tilting
toward disclosure doctrine [adopted by the federal courts] but
rather apply the test of balancing the interests of the parties
as well as those of the public measured by the standard of a
reasonable man.
The court thus recognized that "we must treat these
actions on a case by case basis." Id.
The Kentucky Supreme Court revisited this issue in 1992,
refining the standard set forth in Board of Education
and departing, at least in part, from that decision by
establishing that the Open Records Act does, in fact,
"exhibit[ ] a general bias favoring disclosure." Kentucky
Board of Examiners of Psychologists v Courier-Journal and
Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992). The
court began its analysis with the proposition that "[t]he
public's 'right to know' under the Open Records Act is premised
upon the public's right to expect its agencies properly to
execute their statutory function." Id. Continuing,
the court observed:
In general, inspection of records may reveal whether the
public servants are indeed serving the public, and the policy of
disclosure provides impetus for an agency steadfastly to pursue
the public good.
Id. The court also recognized that the existence of
the privacy exemption "reflects a public interest in
privacy, acknowledging that personal privacy is of legitimate
concern and worthy of protection from invasion of unwarranted
public scrutiny." Id.
Drawing on these fundamental principles, the court articulated
the following standard for determining if a record may properly
be excluded from public inspection pursuant to KRS 61.878(1)(a):
[G]iven the privacy interest on the one hand and, on the
other, the general rule of inspection and its underlying policy
of openness for the public good, there is but one available mode
of decision, and that is by comparative weighing of the
antagonistic interests. Necessarily, the circumstances of a
particular case will affect the balance. The statute contemplates
a case-specific approach by providing for de novo judicial review
of agency actions, and by requiring that the agency sustain its
action by proof. Moreover, the question of whether an invasion of
privacy is "clearly unwarranted" is intrinsically
situational, and can only be determined within a specific
context.
Board of Examiners at 327, 328.
In Zink v Commonwealth of Kentucky, Ky. App., 902
S.W.2d 825 (1994), the Court of Appeals was again presented with
a challenge to an agency's invocation of the personal privacy
exemption. Echoing the rule announced in Board of Examiners,
the court elaborated on its "mode of decision":
[O]ur analysis begins with a determination of whether the
subject information is of a "personal nature." If we
find that it is, we must then determine whether public disclosure
"would constitute a clearly unwarranted invasion of personal
privacy." This latter determination entails a
"comparative weighing of antagonistic interests" in
which the privacy interest in nondisclosure is balanced against
the general rule of inspection and its underlying policy of
openness for the public good. [Board of Examiners] at
327. As the Supreme Court noted, the circumstances of a given
case will affect the balance. [Citation omitted.]
Zink at 828. Applying this standard, the court
concluded that the Commonwealth of Kentucky, Department of
Workers Claims, properly relied on KRS 61.878(1)(a) in denying
the requester access to injury report forms filed with the
Department which contained information including marital status,
number of dependents, wage rate, social security number, home
address, and telephone number. The court emphasized that the only
relevant public interest to be considered is the extent to which
disclosure would serve the principal purpose of the Open Records
Act which is "to further the citizens' right to know what
their government is doing and . . . subject agency action to
public scrutiny." Zink at 829. Because no public
interest would be served by disclosure of information on the
injury report forms in which applicants for workers compensation
benefits had a cognizable privacy interest, that information
could properly be withheld.
With these principles in mind, we turn to the question
presented in this appeal: Whether disclosure of the amounts and
sources of outside athletically related income earned by
employees of the University of Kentucky's athletic department
constitutes a clearly unwarranted invasion of personal privacy.
It is the opinion of this office that the amounts of
outside income qualify for exclusion under the cited provisions,
but not the sources of that income.
At the outset, we emphasize that what is at issue here is not
amounts paid from public coffers for the performance of public
duties. This office has long recognized that the public interest
in ascertaining the salaries of public employees is superior to
the employees' privacy interest in those salaries. OAG 76-717.
"The public is entitled to inspect records documenting exact
amounts paid from public monies, to include amounts paid for
items or for salaries." OAG 90-30, p. 3. Such records
"are perhaps uniquely of public concern." Id. The
University of Kentucky acknowledged these principles by
disclosing salaries paid to each employee by the University. The
issue in this appeal centers on outside income which
"in no way relates to the functions, activities, programs,
or operations of [the University]." It is the University's
position that "Athletic Department staff members have a
clear privacy interest in any extra-University sources and
amounts of income [, and] disclosure of this information would in
no way further the public's interest in monitoring the
performance of these individuals in their public duties."
With respect to the amounts of income, we concur.
Kentucky's courts have recognized that salaries or wage rates
"are generally accepted by society as details in which an
individual has at least some expectations of privacy." Zink
at 828. Indeed, "few things in our society are deemed of a
more intimate nature than one's income [, and] this information
is commonly treated circumspectly." Zink at 829.
Having established that the privately earned income of employees
of the University's athletic department is of a personal nature,
we must next determine if disclosure of that income would
constitute a clearly unwarranted invasion of personal privacy by
weighing the privacy interest of those employees against the
public interest in subjecting University action to public
scrutiny.
The University is required to maintain documentation on its
employees' outside athletically related income by NCAA regulation
(although not by statute or state regulation). Arguably, the
public has a legitimate interest in ascertaining whether the
University is complying with this requirement. This interest has,
however, been effectually promoted by release of the redacted
request for approval forms. "Mindful that the policy of
disclosure is purposed to subserve the public interest, not to
satisfy the public's curiosity, . . . and that there is a
countervailing public interest in personal privacy, here strongly
substantiated," we conclude that disclosure of the amounts
of outside income earned by employees of the University's
athletic department would constitute a clearly unwarranted
invasion of personal privacy. Board of Examiners at 328.
Conversely, "the place of one's employment may not rise
to a personal level, as one generally does not work in
secret." Zink at 828; see also OAG 89-90, p. 7, 8
(holding that "one does not typically work in secret, such
that one's . . . work experience would be reasonably termed
information of a personal nature"). This is especially true
where the nature of that employment places the individual
directly in the public eye, such as television and radio
commentary, product endorsement, speaking engagements, and sports
camps bearing the name of the University employee. It cannot be
persuasively argued that the employees of the University's
athletic department have a reasonable expectation of privacy in
the sources of their outside income. Because this information
fails to meet the threshold requirement for invocation of the
privacy exception, we need not postulate the competing public
interest. It is sufficient, in our view, to conclude that there
is no privacy interest implicated by disclosure of the sources of
the athletic department employee's outside income, and this
information must be released.
Consistent with the principles set forth above, the University
of Kentucky is directed to release the request for approval forms
submitted by employees of its athletic department. 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.
A. B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
#311
Distributed to:
Steve Rock
Reporter
The Kansas City Star
1729 Grand Avenue
Kansas City MO 64108
George DeBin
Official Records Custodian
Administration Building
University of Kentucky
Lexington KY 40506
Paul Van Booven
Deputy General Counsel
2 Administration Building
University of Kentucky
Lexington KY 40506