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 is an appeal from Seven Counties Services, Inc.'s, response to Renie Schuble's June 23, 1997, request for copies of her employment records. On June 25, 1997, Lisa Patrick Leet, vice president for human resources and staff counsel, denied Ms. Schuble's request advising her that Seven Counties is not a public agency, but is instead a private, non-profit organization. In support, she cited 96-OMD-180 in which the Attorney General held that Seven Counties is not a public agency for purposes of the Open Meetings Act. In the alternative, Ms. Leet argued that if Seven Counties is a public agency, it is not obligated to release Ms. Schuble's employment records because they do not "relate directly to publicly-funded programs." Citing KRS 61.870(2), Ms. Leet observed:
[Employment] records are private and highly confidential, and have nothing to do with Seven Counties' functions, activities, programs, or operations funded by state or local authority. Consequently, the employment records are not subject to disclosure under the ORA. See Hardin County v Valentine, Ky. App., 894 S.W.2d 151, 152 (1995).
The question presented in this appeal is whether Seven Counties Services, Inc., properly denied Ms. Schuble's request. For the reasons which follow, we find that Seven Counties improperly denied the request.
In a follow-up letter to this office, Steven L. Snyder, an attorney representing Seven Counties, concedes that that entity "may be characterized as a public agency pursuant to KRS 61.870(1)(h) inasmuch as it derives at least twenty-five percent of its funds expended by it in the Commonwealth of Kentucky from state and local authority funds." In a separate letter, he acknowledges that "the salaries of Seven Counties's employees are funded primarily through state and local governmental revenues." Nevertheless, it is Seven Counties' position that the Open Records Act does not require the disclosure of "confidential personnel records to a former employee. " Mr. Snyder observes:
KRS 61.870(2)exempts from its provisions those records which do not relate to functions, activities, programs or operations funded by government sources. The creation and maintenance of personnel records are not functions, activities, programs or operations for which Seven Counties directly receives governmental funds. Consequently, under KRS 61.870(2) those records are exempt from disclosure.
Relying on Hardin County v Valentine , above, he maintains that "not every record created by government funded employees is a public record. " Although he recognizes that "the public is entitled to see how government funds are expended, " Mr. Snyder nevertheless asserts that "the ORA does not explicitly provide the public the right to review confidential personnel records at privately-run corporations such as Seven Counties." Anticipating the argument that Ms. Schuble is entitled to inspect her own employment records under KRS 61.878(3), Mr. Snyder asserts that that provision "only applies to applicants and employees of public agencies . . . [and] does not specifically address ex-employees of private agencies that receive some government funding."
We are not persuaded by these arguments. With respect to Seven Counties' assertion that it is not a public agency for purposes of the Open Records Act, and its reliance on 96-OMD-180 to support this position, we note that in an early open records opinion the Attorney General resolved this issue. Responding to the argument that an agency was not required to disclose the minutes of its meetings because it was not a public agency for purposes of the Open Meetings Act, this office observed:
The Open Records Law, KRS 61.870 to 61.884, contains a different definition of a public agency in that it includes "any other body which is created by state or local authority in any branch of government or which derives at least 25 percent of its funds from state or local authority. " KRS 61.870(1). This provision is not contained in the Open Meetings Law, and therefore some organizations which are not under the purview of the Open Meetings Law may be under the purview of the Open Records Law.
OAG 76-648, p. 2. Seven Counties acknowledges that it receives more than 25 percent of the funds it expends in the Commonwealth from state or local authority. Annual budget records disclose that in fact it receives 39 percent of its funds under a contract with the Department of Mental Health and Mental Retardation, and an additional 13 percent of its funds from other state and local grants and contracts. Seven Counties Services, Inc., is, therefore, a public agency within the meaning of KRS 61.870(1)(h). See also, OAG 76-648; 97-ORD-65 (copies enclosed) .
At page 2 of OAG 76-648, the Attorney General also observed that "as far as open records are concerned, it is apparently the policy of the Legislature that wherever public funds go, public interest follows." Because it receives more than 25 percent of its funds from state or local authority, Seven Counties' records are public records unless they "are not related to functions, activities, programs, or operations funded by state or local authority. " KRS 61.870 (2). Despite the fact that its employees' salaries are, by its own admission, primarily funded through state and local government revenue, Seven Counties argues that employment records are not public records. Seven Counties relies heavily on the Kentucky Court of Appeals' decision in Hardin County v Valentine , above.
In Hardin County v Valentine , the Court of Appeals held that a request submitted by a former patient to a publicly funded hospital for copies of his medical records need not be honored because those records did not relate to the hospital's operations. The court noted that "the patients of a publicly-owned hospital have as great an expectation that their medical records will not be subject to public scrutiny as do the patients of private hospitals." Hardin County v Valentine , p. 152. We do not believe that employees of an agency whose salaries are funded by state and local authority can reasonably assert the same right of privacy.
In our view, Seven Counties' employees are an integral part of its operations. The term operate means "to conduct or direct the affairs of (a business, etc.)," and the term operation "a process or action that is part of a series in some work." Webster's New World Dictionary Second College Edition (1974). Because these employees' salaries are publicly funded, the public has a legitimate interest in records pertaining to their employment such as their position descriptions, salaries, resumes (reflecting relevant prior work experience, educational qualifications, and information regarding ability to discharge the responsibilities of employment), and disciplinary actions stemming from job-related misconduct. OAG 76-717; OAG 91-41; 96-ORD-86. Conversely, the public cannot legitimately ingress upon matters which are of a purely personal nature, including the employees' home addresses, social security numbers, medical records, and marital status since disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a); OAG 79-275; OAG 91-48; 94-ORD-91. As we noted at page 2 of 97-ORD-65, "Whatever status the employees of Kentucky River Community Care, Inc., may perceive themselves to hold, it is apparent that if their salaries are paid from public funds the public's interest in monitoring the expenditure of those funds outweighs the employees' expectation of privacy."
As a former employee of Seven Counties whose position was publicly funded, Ms. Schuble is entitled to inspect and copy "any record including preliminary and other supporting documentation that relates to [her]." KRS 61.878(3). That statute provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
In 97-ORD-87, the Attorney General held that this provision applies to former agency employees. At pages 4 and 5, we observed:
By its express terms KRS 61.878(3) extends to public agency employees, applicants for employment, and eligibles on a register. Although the provision does not contain a specific reference to former employees, we believe that its expansive wording, coupled with the statement of legislative intent underlying the Open Records Act, codified at KRS 61.871, that free and open examination of public records is in the public interest, and the rule of statutory construction, codified at KRS 446.080(1), that all statutes are to be interpreted with a view to promote their objects and carry out the intent of the legislature, compel this result. The obvious purpose of the 1992 amendment to KRS 61.878(3) was to broaden the scope of the provision to insure that all public employees, not just state employees governed by Chapter 18A of the Kentucky Revised Statutes, enjoyed an equal right of access to records relating to them. An interpretation of this provision which does not include former public employees "is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records law." Frankfort Publishing Co., Inc. v Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992) citing Kentucky Tax Commission v Sandman, 300 Ky. 423, 189 S.W.2d 407 (1945).
It is simply inconceivable that the legislature intended to endow applicants for public employment with a broader right of access to records relating to them than former public employees. Former employees clearly have a greater investment in public service, both professionally and legally, and a corresponding need to preserve their legal rights and professional reputations by insuring the accuracy of records relating to them. Former public employees, whether they voluntarily left public employment to pursue other careers, were forcibly separated from public employment, or, after years of service, retired from public employment, are entitled to know at least as much about records relating to them in their former public employer's possession as applicants for public employment. Any other reading of KRS 61.878(3) is inconsistent with the tenor of that provision as well as the expressed legislative intent and policy of the Act as a whole.
We believe that this decision, a copy of which is enclosed, mandates disclosure of Ms. Schuble's employment records to her.
This is not to say that every record in the custody of Seven Counties Services, Inc., is a public record subject to public inspection under the provisions of the Open Records Act. Pursuant to KRS 61.870(2), those records which do not relate to functions, activities, programs, or operations funded by state or local authority are excluded from public inspection. Seven Counties is, however, accountable for all publicly funded operations by means of records access, and this includes the records of employees who conduct its business and who are paid from public coffers.
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.