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 Ohio County Fiscal Court violated the Open Records Act in denying John Phelps's October 14, 1998, request to inspect payroll records of, and other records of payment to, Ohio County employees from January 1, 1997 to September 30, 1998. For the reasons that follow, we find that the fiscal court's denial constituted a procedural and substantive violation of the Act.
In his October 14 letter, Mr. Phelps requested access to:
1. The payroll records of all county employees for the period starting January 1, 1997 through December 31, 1997.
2. The payroll records of all county employees for the period starting January 1, 1998 through September 30, 1998.
3. All payments for these time periods to county employees in addition to payroll, regardless of which fund they are paid out of.
4. All canceled checks paid to county employees for these periods.
On behalf of the Ohio County Fiscal Court, Sue Hitchell, County Treasurer, verbally denied Mr. Phelps's request, advising him that payroll records are not open for public inspection. In response to his request for canceled checks, Ms. Hitchell stated that those records were in the custody of Donna Bouvier, CPA, who is conducting an audit of the county's finances. Ms. Hitchell did not indicate when the canceled checks would be returned to the county and available for inspection, but instead expressed the view that such records are also exempt from disclosure. Dissatisfied with the fiscal court's response, Mr. Phelps initiated this open records appeal.
In a follow-up letter to this office dated October 27, 1998, Ohio County Attorney E. Glenn Miller and Ms. Hitchell reaffirmed the fiscal court's position that disclosure of these records would constitute a clearly unwarranted invasion of personal privacy. Ms. Hitchell explained:
[Payroll] records contain sensitive information on County employees such as the number of dependents for income tax withholding purposes, the amount of income tax withheld for Federal and State purposes, which employees participate in tax deferred compensation programs, which employees have sums withheld for purposes of purchasing savings bonds, which employees are under Court orders for sums to be withheld from their checks for various reasons and other similar information that public disclosure thereof would clearly constitute an unwarranted invasion of the personal privacy of such employee.
She again expressed the view that canceled checks qualify for exclusion under the privacy exception.
We do not find these arguments persuasive. Although we share the view that certain entries on payroll records and canceled checks are protected from disclosure by KRS 61.878(1)(a), we find that records reflecting salaries paid to, and monies expended on, public employees are subject to disclosure. Pursuant to KRS 61.878(4), and consistent with the guidelines set forth below, the Ohio County Fiscal Court may mask those portions of the records in which the county employees' privacy interests outweigh the public's interest in disclosure, but must otherwise make available to Mr. Phelps, and the public generally, all records which are in its possession and which are responsive to his request. Pursuant to KRS 61.872(5), the fiscal court must notify him of the place, time, and earliest date on which the records which are not currently in its custody will be available for inspection.
The principle that the salary of a public employee is a matter of legitimate public interest, and records reflecting public employee salaries must be made available for inspection, is as old as the Open Records Law itself. In OAG 76-717, this office held that the public is entitled to know the name, position, work station, and salary of a public employee. This, and subsequent opinions, were premised on the notion that these are matters in which the public has an interest since public employees are carrying on the public's business at public expense. See, e.g., OAG 85-94; OAG 86-38; OAG 87-76; OAG 88-13; OAG 89-97; 93-ORD-144; 97-ORD-85. The public's right to know the salary of a public employee is therefore superior to the employee's right of privacy in his or her salary.
It is equally well-established that portions of payroll records in which the employee has a cognizable privacy interest, and which do not reflect on the discharge of his or her public duties, may be withheld pursuant to KRS 61.878(4). That statute provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
In OAG 82-233, this office recognized:
A payroll voucher contains a mixture of exempted and nonexempted information. The name of the person being paid and the gross pay to that person is not exempt from public disclosure. Other information on the voucher, such as withholding for taxes, insurance, retirement, credit union, bonds, charitable contributions and annuities are items which come under the exemptions provided by KRS 61.878(1)(a)?
See also, OAG 87-76; OAG 88-13; 98-ORD-99. If the Ohio County Fiscal Court's payroll records contain such a mixture of exempt and nonexempt information, it may discharge its statutory duty under the Open Records Act by permitting Mr. Phelps to inspect redacted, or mask, versions of those records, or by preparing a list which contains the information which is subject to public inspection. Its general denial of Mr. Phelps's request, however, constitutes a violation of the Act. The Ohio County Fiscal Court is directed to make immediate arrangements for Mr. Phelps to inspect the 1997 and 1998 county employee payroll records.
With respect to those records which are not currently in its custody, namely canceled checks, we refer the Ohio County Fiscal Court to KRS 61.872(5). That statute 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.
Although a public agency cannot permit inspection of records which are temporarily not in its custody because they are in use elsewhere, this provision imposes an affirmative duty on the agency to give the requester a detailed explanation of the cause of the delay (beyond the standard three day deadline), and to advise him of the earliest date on which he can expect to review the records. The Ohio County Fiscal Court must fully discharge its duties under the Open Records Act by notifying Mr. Phelps of the earliest date on which he may inspect the canceled checks to which he requested access.
In closing, we note that the Ohio County Fiscal Court failed to comply with the procedural requirements of the Open Records Act which are found at KRS 61.880(1). That statute provides that upon receipt of a request for records, the agency must decide within three business days whether to comply with the request, and that it must issue a written response within those three days. If the agency denies the requester access to all or any part of the records he seeks, it must include a statement of the exception authorizing nondisclosure, and a brief explanation of how the exception applies to the records withheld. In responding to Mr. Phelps's request, the Ohio County Fiscal Court failed to comply with these requirements. The fiscal court did not furnish Mr. Phelps with a written response of any kind. We urge the Ohio County Fiscal Court to review its policies, along with the cited provision, to insure that future open records responses conform to the Open Records Act.
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.