Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert 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 response of the Office of the Whitley County Judge/Executive to Don Mahan's May 8, 1998 open records request for records of the Whitley County Court Clerk's office which show the salaries of and the employees of the County Clerk's office and the names of all employees and the sources of funds for the past five years.
In his letter of appeal, received by this office on May 18, 1998, Mr. Mahan indicated he had yet to receive a response to his request. After receipt of Mr. Mahan's letter, we sent a "Notification to Agency of Receipt of Open Records Appeal." As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Leroy Gilbert, Whitley County Judge/Executive, provided this office with a response to the issues raised in the appeal. In his response, Judge Gilbert stated:
Mr. Mahan has requested payroll records of the Whitley County Court Clerk Tom Rains' office. The Fiscal Court does not process the payroll of the County Clerk or the Sheriff. They process their own payrolls. The Fiscal Court does pay the matching Social Security and processes the monthly retirement reports. We file these based on the numbers given to us by these officials.
These records include the individual's names, social security number, gross wages, social security amount, and retirement amount. I was under the impression that an individual's social security and retirement information was not considered public record. I have been told that if I give this information out, I would be sued. Therefore, I will give this information out only if I have a letter signed by Ben Chandler, Attorney General stating that I should do so. Please keep in mind that these records do not accurately indicate payroll, as the number of hours worked by these individuals are not reflected in the reports submitted to my office.
Mr. Mahan is requesting 5 years worth of records. Once these records have been audited, they are stored in boxes in another location. The retrieval of this amount of information would be difficult and time consuming. If Mr. Chandler determines that this information should be released, it would require an extension of time.
At issue in this appeal is whether the response of the Office of the Whitley County Judge/Executive was consistent with the Open Records Act. For the reasons which follow, we conclude that the response was procedurally and substantively inconsistent with requirements of the Act.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The failure of the Office of the Whitley County Judge/Executive to initially respond in writing, and within three business days, to Mr. Mahan's request was procedurally deficient and violated the requirements of KRS 61.880(1). Likewise, the failure to cite, in the subsequent response submitted to the Attorney General, the specific statute which authorized the withholding of the requested records along with a brief explanation of how the cited exception applied to the records withheld also constituted a violation of the Act. Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
It is unclear from the response whether the Office of the County Judge/Executive has the payroll records requested by Mr. Mahan. If it does not have custody or control of the records requested, it should provide Mr. Mahan with the name and location of the official custodian of the requested public records. KRS 61.872(4).
Assuming the Office of the County Judge/Executive has custody and control of the requested records, we turn to the substantive issues of this appeal. This office has previously held that the public is entitled to know the name, position, work station, and salary of officers and employees of public agencies. OAG 76-717. These are matters in which the public has an interest since public employees are carrying on the public's business at public expense and, thus, are subject to public disclosure. However, a public employee is entitled to privacy as to his personal life. We have recognized that personal information, such as home addresses, social security numbers, and 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). 96-ORD-274; OAG 88-13.
We conclude that the Office of the County Judge/Executive's response denying the request for copies of records relating to the public payroll and the names and salaries of public employees was inconsistent with the Open Records Act. Accordingly, these records should be made available for Mr. Mahan's inspection.
The Open Records Act does not require an agency to create a record that does not already exist. However, since a public agency is required by KRS 61.878(4) to separate the excepted material from the nonexcepted material, it may either compile a list of public employees and their salaries or provide a copy of the payroll records in which the confidential portions of the records have been redacted or masked.
In his letter to the Attorney General, Judge Gilbert indicated that many of the 5 years worth of records requested were stored in boxes in another location and retrieval of these records would be difficult and time consuming. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
In 95-ORD-132, this office explained the operation of KRS 61.872(5) as follows:
If the records are not readily available or the task of reproducing voluminous records, covering a long period of time, makes it virtually impossible to meet the time limitations, the circumstances might necessitate a reasonable extension of the three-day period limitation. However, the burden would be on the agency to provide a detailed explanation of the cause of delay and arrange for inspection at the earliest possible date.
Thus, the Office of the County Judge/Executive's Office should have informed Mr. Mahan as to the place, time, and earliest date these records would be available for inspection. The agency's failure to so inform Mr. Mahan was inconsistent with the requirements of KRS 61.872(5). Mr. Mahan should be promptly informed as to the place, time, and earliest date when he can inspect these records. If further delay is necessary, it must provide a detailed explanation of the cause of the delay and designate the earliest possible date the records will be 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.