Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Paducah violated the Open Records Act in denying a request submitted by the Professional Fire Fighters of Paducah - Local 168 for copies of the Paducah Fire Department's daily roster from January 1, 1997, through December 31, 1997. The Fire Fighters union also asked that it be given a copy of the daily roster on an ongoing basis. On behalf of the City of Paducah, Interim City Manager Earl Feezor refused to honor the Fire Fighters Union's request on the following bases:
. The daily roster is a preliminary draft "used for interdepartment communication between the Fire Department and the City Payroll Office," and is exempt pursuant to KRS 61.878 (1)(i) and (j) (misidentified as (1)(h) and (i)). The City maintained that the roster contains information that is compiled on a daily basis and used by the payroll clerk to prepare compensation checks. Mr. Feezor stated that the City would consider a request for final payroll records, but such a request had not been submitted.
. The Open Records Act "does not recognize a continuing or ongoing request which requires the public employer to provide information for a continuous and indefinite period of time." Without citing KRS 61.872(6), the City asserted that such a request would be unreasonably burdensome and would disrupt its essential functions.
. Local 168 is not a "person" entitled to a right of inspection under the Open Records Act. In closing, the City noted that the Fire Fighters Union's request "circumvents the terms, provisions, and spirit" of its recently executed collective bargaining agreement with the City.
For the reasons which follow, we conclude that the City of Paducah erred in denying the Fire Fighters Union's request for copies of the 1997 daily rosters, but properly refused to honor the Union's standing request for rosters not yet created. We reject the City's position that the Fire Fighters Union is not entitled to inspect public records because it is not a "person" entitled to this right under KRS 61.872, and its argument that the Union bargained away its right to file such a request when it executed a collective bargaining agreement with the cCty. We address each of the City's arguments.
Daily Roster as a preliminary document
In 96-ORD-239, this office concluded that the Jefferson County Air Pollution Control District improperly relied on KRS 61.878(1)(a) and (j) in denying a request for weekly time sheets maintained by the District. Noting that the time sheets "reflect[ed] total hours an employee worked, start and stop times, hours of, reasons for absences, and compensatory hours earned," we held 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." 96-ORD-239, p. 2. We found that the District's reliance on KRS 61.878(1)(j) was misplaced because the time sheets could not properly be characterized as a preliminary recommendations or memoranda in which opinions were expressed. Disclosure of the time sheets would not, "discourage communications between subordinates and their superiors, or otherwise compromise the District's internal decision-making process." 96-ORD-239, p. 3. A copy of 96-ORD-239 is attached hereto and incorporated by reference.
We find that the logic of 96-ORD-239 can be extended to the present appeal. The daily roster prepared by the assistant chiefs and used by the payroll clerk to prepare the employees' checks is analogous, if not identical, to the weekly time sheets at issue in 96-ORD-239. Although we have not been so advised, it is safe to assume that the roster reflects total hours work, start and stop times, hours off, reasons for absences, and compensatory hours earned, if any. This being the case, it cannot be characterized as a preliminary memorandum in which opinions are expressed per KRS 61.878(1)(j). Nor, in our view, can it be characterized as a preliminary draft, note, or correspondence with private individuals per KRS 61.878(1)(i).
It is self-evident that the daily roster does not constitute correspondence with a private individual. Whether it is a preliminary draft or note is a closer question. In a recent decision we referred to the dictionary definition of a draft as "a preliminary outline, plan, or version," and the term note as "a brief record, esp. one written down to aid the memory. " Webster's II New Riverside Dictionary (1988) cited in 97-ORD-183, p. 4. It is our opinion that the daily roster does not qualify as either a draft or a note.
As noted, attendance records, whether daily, weekly, or monthly, "verif[y] that ? employees were present and on the job during any particular time period." OAG 91-176, p. 3, 4. Elaborating on this statement, in 96-ORD-239, we opined:
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.
96-ORD-239, p. 4, citing OAG 84-161, p. 2. We reject the notion that a daily roster verifying time spent in public service represents a mere aid to memory or a tentative version of a formal and final written product. The roster is complete and accurate as of the date it is prepared. Although we concur with the City of Paducah in its view that a request for payroll records must be honored, we hold that the daily roster is also subject to public inspection insofar as "it represents a confirmation of public funds expended for public service. " OAG 84-161, p. 2. The City is directed to furnish the Fire Fighters Union with copies of the Paducah Fire Department daily roster from January 1, 1997, through December 31, 1997.
The Fire Fighters Union's standing request
The City of Paducah is not obligated to furnish the Fire Fighters Union's with copies of the daily roster "on an ongoing basis." In 97-ORD-18, the Attorney General held that the Open Records Act does not require public agencies to honor requests for records which do not exist on the date of the request. At page 2 of that decision, we observed:
The "right to inspect public records" attaches only after those records have been "prepared, owned, used, in the possession of or retained by a public agency. " No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records.
(Emphasis in original.) That decision, and the authorities cited therein, is adopted in full and incorporated by reference. A copy of the decision is enclosed.
Fire Fighters Union right to inspect public records
Finally, we reject the City's argument that the Fire Fighters Union is not entitled to a right of inspection because it is not a "person" within the meaning of KRS 61.872. In 95-ORD-9, we rejected a similar argument advanced by the Department of Personnel to deny a request submitted by the Kentucky Association of State Employees. Citing OAG 90-13, we reasoned:
On at least one occasion, this office has defined the term "person" in the context of an open records appeal. In OAG 90-13, p. 3, we observed:
We have thus recognized that because there is no specific provision defining the term "person" in Chapter 61, we must look to the definition of that term found in Chapter 446 "unless the context otherwise requires[.]" KRS 446.010.
In adopting this definition, we have attempted to facilitate the broadest possible access to public records by refusing to narrowly construe the term "person," or to impose hypertechnical requirements on persons or entities who wish to enforce their rights under the Act. We believe that this position is consistent with the clear intent of the law, which is articulated at KRS 61.871. For purposes of submitting an open records request, or appealing to the Attorney General, "person" may extend to an unincorporated association like KASE.
95-ORD-9, p. 8 (copy enclosed) .
Nor do we believe that the Fire Fighters Union "bargained away" its rights under the Open Records Act by entering into a collective bargaining agreement with the City. On this issue we have stated that "it is improper for a public agency to require its employees to forfeit their rights under the Act by signing an agreement...." 95-ORD-87, p. 9; 96-ORD-39. It is the opinion of this office that Professional Fire Fighters of Paducah - Local 168 has the same rights as any other requester under the Open Records Act, and that it cannot be required, implicitly or explicitly, to surrender those rights in an agreement with the City of Paducah.
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.