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 Covington Police Department violated the Open Records Act in denying Deborah Luck's July 3, 1998, request for records reflecting her ex-husband, Sergeant Raymond Murphy's, scheduled work hours for June 29, 1998, July 1, 1998, and July 3, 1998. For the reasons that follow, we find that the Department improperly withheld those records.
Although it was not addressed to her, the Department's response to Ms. Luck's request consisted of a July 9, 1998, memorandum to Robert Crutcher from Lt. Colonel Schmidt. Ms. Luck had submitted her July 3 request to Mr. Crutcher, apparently believing that he was the Department's custodian of records. In the July 9 memorandum, a copy of which was furnished to Ms. Luck, Lt. Colonel Schmidt indicated that Sergeant Murphy had expressed concern about Ms. Luck's requests for records relating to him. Lt. Colonel Schmidt stated that he had contacted the city attorney, Joe Condit, who "advised against giving her any more information . . . [noting that] such information should be gotten either through a subpoena or a deposition." This appeal followed.
In a subsequent letter addressed to this office, Mr. Condit elaborated on the Department's position. Mr. Condit argued that Ms. Luck did not make her request to the city's official records custodian, in this case, the city manager and the city clerk. Although she had informally received the information from Mr. Crutcher, with Sergeant Murphy's consent, Mr. Crutcher was "not authorized to disseminate such information . . . [and] the City's Legal Department [has] instructed the parties to end this practice."
Moreover, Mr. Condit observed, KRS 61.878(1)(a) authorizes nondisclosure of Sergeant Murphy's work schedules. Relying on the privacy analysis set forth in Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324 (1992), he maintained that the requested records contain information of a personal nature and that their disclosure would not further the purpose for which the Open Records Law was enacted, namely, to permit the public to be informed about what their government is doing. In Mr. Condit's view, "The public has little interest in obtaining information concerning whether an individual worked on any particular day." He noted that Ms. Luck's "reasons for seeking such information is to determine whether Sergeant Murphy has violated an order relating to the dissolution of their marriage."
Finally, Mr. Condit argued that disclosure of Sergeant Murphy's work schedule would set a dangerous precedent. "If this information were available to the public," he maintained, "it would also be available to those who seek the information to further criminal activity." In support, he notes that a drug dealer could obtain the work schedule of a detective working in the narcotics unit, thereby "endanger[ing] the safety and effectiveness of law enforcement officers."
On the facts of this appeal, we find these arguments unpersuasive. While we concur with the Covington Police Department in the view that analysis of this question must proceed under KRS 61.878(1)(a) and the Kentucky Supreme Court's decision in Kentucky Board of Examiners , above, our analysis yields a different result. It is the opinion of this office that a public employee does not have a reasonable expectation of privacy in records reflecting hours which the employee is scheduled to work.
In 96-ORD-239, this office addressed the issue of the propriety of an agency's refusal to release records reflecting time spent in public service. At pages 3-5 of that decision, we observed:
An analysis of the propriety of an agency's invocation of the privacy exemption begins with a determination of whether the information contained in the records withheld is of a personal nature. Kentucky Board of Examiners of Psychologists v Courier-Journal & Louisville Times Co. , above. We do not believe that information relating to time spent in public service meets this threshold requirement. See, e.g., OAG 84-161, p. 2, "The time a public employee spends in performance of public service which is compensated by public funds is directly related to public employment performance. As such, no personal privacy is involved and no protection against an unwarranted invasion thereof is required"; OAG 86-55, p. 3, "The privacy exemption applies only to matters unrelated to the performance of a public job"; OAG 91-176, p. 3, 4, "Attendance sheets verify that . . . employees were present and on the job during any particular time period, and are not protected by the privacy exemption. " It is safe to say that nothing in those records "touches upon the personal features of private lives." Zink v Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994). Public employees do not, therefore, have a reasonable expectation of privacy in their weekly, or monthly, time sheets.
Assuming, for the sake of argument, that the time sheets do contain information of a personal nature, we believe that a public employee's privacy interest in their nondisclosure is outweighed by the public's interest in determining whether "public servants are indeed serving the public." Zink at 828, 829, citing Board of Examiners at 328. As this office observed in OAG 84-161, p. 2:
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 performedpublic 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.
In our view, the public's right to know is superior to the employees' privacy interest, real or imagined.
While we recognize that the records which Ms. Luck seeks apparently reflect hours which were scheduled to be worked as opposed to hours which were actually worked, we believe that the logic of 96-ORD-239 can be extended to the present appeal, and that that decision is controlling. Because both a work schedule and a time sheet "directly relate [] to public employment performance" OAG 86-55, p. 3, they are subject to public inspection.
In 96-ORD-239, we also analyzed the issue of the requester's particular purpose in seeking access to records reflecting time spent in public service, concluding that that purpose had no bearing on the outcome of the appeal. Quoting liberally from the decision of the Court of Appeals in Zink v. Commonwealth , above, we reasoned:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act.
Zink at 828. We cannot agree with the Covington Police Department that public employee work schedules reveal nothing about public agency conduct. Such records are related, in more than an incidental way, to expenditure of public funds and the performance of public duties. Ms. Luck's identity and motives notwithstanding, we believe that the work schedules at issue in this appeal must be disclosed.
We do not dismiss entirely Mr. Condit's argument that disclosure of a detective's work schedule may undermine his effectiveness and place him in peril. Although there is no catch-all security exemption in Kentucky's Open Records Act, the Attorney General has recognized:
that a public agency may properly invoke KRS 61.872(6) to deny a request for public records . . . if release of those records would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records, or information contained therein. Such a request may be treated as unreasonably burdensome within the meaning of KRS 61.872(6) which provides:
If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies.
95-ORD-121, p. 8. The record before us is devoid of evidence that Sergeant Murphy's effectiveness would be undermined, or that he would be imperiled in the discharge of his particular duties, by disclosure of his work schedule for three separate dates preceding the open records request. We therefore cannot affirm the Covington Police Department's denial of Ms. Luck's request on these facts, but leave for another day the question of whether the work schedule of police detectives engaged in particularly sensitive work may properly be withheld under KRS 61.872(6). Where, for example, a detective is engaged in undercover activities or similar duties, and disclosure of his work schedule would place him at a substantial risk of personal harm, invocation of KRS 61.872(6) to authorize nondisclosure of the work schedule would clearly be warranted.
Nor can we affirm the Department's denial of Ms. Luck's request on the basis that she did not submit it to the City's official custodian of records. Pursuant to KRS 61.872(4), the public agency is responsible for the correct transmission of an open records request. KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
Ms. Luck's request was clearly identified as an open records request and addressed to the "Keeper of the Records." There was no mystery as to the nature of the transmission, and it was incumbent on the Covington Police Department employee who received it to immediately forward it to the city's custodian of records. It is imperative that public agencies educate their employees on the importance of these laws, and in particular, the need to immediately forward all misdirected open records requests to the agency's records custodian.
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.