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 Kentucky Judicial Form Retirement System violated the Open Records Act in denying Courier-Journal attorney Kenyon Meyer's October 14, 1999, request "for the record or records indicating the actual retirement pay that retired Judge Glenn McDonald is receiving." For the reasons that follow, we find that the JFRS erred in withholding the responsive record, with the exception of those entries reflecting transfer or service from the Kentucky Employee Retirement System, total service (which includes transferred service), and the statutory monthly pension (which is based on total service, including transferred service).
In his October 14 request, Mr. Meyer emphasized that The Courier-Journal was requesting only "information regarding benefits received from a state-run retirement plan." It was his position that because the formula used to calculate Judge McDonald's retirement pension is set forth in KRS 21.400, and the information necessary to calculate that pension, namely years of service and compensation in the last sixty months preceding retirement, are matters of public record, the JFRS could not properly withhold the record or records identified in his request.
On behalf of the JFRS, Executive Director Donna S. Early denied Mr. Meyer's request, in full, in a letter dated October 18, 1999. Relying on KRS 61.878(1)(a), she maintained that the records requested contained information that "is purely personal in nature." She explained:
Members of the Judicial Retirement Plan make a voluntary election to participate in the Plan and make personal contributions to the Plan. The personal contributions consist of a required payment of a percentage of salary and in some cases, a direct payment for the purchase and/or transfer of nonjudicial service credit. In the event service is transferred from the Kentucky Retirement System to the Judicial Retirement Plan, that service credit constitutes accounts information specifically excluded from publication by KRS 61.661.
On this basis, the Kentucky Judicial Form Retirement System asserted that disclosure of the information Mr. Meyer requested would constitute a clearly unwarranted invasion of Judge McDonald's personal privacy. This appeal followed.
On appeal, The Courier-Journal argued that "the public has a right to know how its elected officials are being compensated. " Rejecting the JFRS's contention that the requested record cannot be disclosed because it reflects the judge's personal contribution, as well as taxpayer dollars, The Courier noted that it is only seeking "records that reveal the benefits Judge McDonald is receiving pursuant to the formula set forth in KRS 21.400[, and] this formula does not require information concerning personal contributions." By the same token, The Courier asserted, Mr. Meyer did not request records revealing retirement benefits Judge McDonald is receiving as a result of his participation in the Kentucky Employees Retirement System, but only those benefits he receives pursuant to the formula set forth in KRS 21.400. However, The Courier maintained, the presence of a confidentiality provision that extends to account records in the custody of the Kentucky Employees Retirement System, and the absence of a similar provision that extends to records of the JFRS, underscores "the drastic difference between the privacy interest that a typical state government employee may have in retirement benefit and the lack of any legitimate privacy interest that a retired member of the judiciary has in government funded retirement benefits. " Under these circumstances, The Courier concluded, the public's right to know outweighs Judge McDonald's privacy interest.
In a supplemental response to The Courier's appeal, JFRS attorney Roy N. Vance elaborated on the agency's position. Reaffirming JFRS's view that KRS 61.878(1)(a) authorizes nondisclosure of the record identified in Mr. Meyer's request, Justice Vance refuted the arguments advanced by The Courier , asserting that Judge McDonald's privacy interest in the information requested was clearly superior to the public's interest in disclosure. Justice Vance maintained:
A judge's privacy interest in his retirement system records is apparent. Whether or not he elects to participate in the system is a purely private and personal decision for him. The extent and amount of his pension benefits depends in part on his own personal financial contribution to the plan. The transfer of service credit in another public employee retirement plan to the Judicial Retirement Plan will often require an additional substantial personal financial contribution to the Judicial Plan. The disclosure of the amount of pension benefits will give a distorted picture because it will include money from public funding and also money paid into the system by the judge out of his own pocket. This amount will vary from one participating judge to another depending on whether he has purchased service time from another retirement system.
Conversely, he argued, the public's interest would not be served inasmuch as "disclosure of the information sought would do nothing whatever to show whether the [JFRS] is properly functioning to achieve its purpose and would not in any real way subject the agency to public scrutiny." Relying on the Court of Appeals' decision in
Zink v. Commonwealth, Ky. App. 902 S.W.2d 825 (1994), Justice Vance contended that disclosure of Judge McDonald's retirement pension would not offer any meaningful insight into the operation and functioning of JFRS, particularly where "the information sought would create a false and misleading impression in the public's mind as to the amount of public money being paid to the recipient." Moreover, he noted, there is no "drastic difference" between a retired state government employee and a retired member of the judiciary; both are paid a pension in consideration of past service to the state. Simply put, Justice Vance continued:
KRS 61.661 does establish an absolute privacy interest in pension benefits for state employees and no reason exists why there should be a different policy for retired public employees who happen to have been judges.
At a minimum, he concluded, KRS 61.661 must apply to a retired judge who transferred some, or all, of his state employee retirement account over to his judicial retirement account. As a means of facilitating the Attorney General's review of this issue, JFRS furnished this office with a record in Judge McDonald's file that was responsive to Mr. Meyer's request.
Having reviewed that document, along with the arguments advanced by the parties and the authorities cited, we find that the JFRS interprets the privacy exception codified at KRS 61.878(1)(a) too broadly, and that the agency erred in withholding the pension computation form reflecting the period of Judge McDonald's service as a district judge and his final compensation based on the compensation he received in the sixty months preceding his retirement. Because the nonexempt information is commingled with exempt information relating to Judge McDonald's transferred service from the Kentucky Employees Retirement System, which is protected from disclosure by KRS 61.661 and KRS 61.878(1)(l), we find that the JFRS may redact those entries which document the years of service transferred, the years of total service, the statutory monthly pension, and the "bottom line" retirement pension.
In reaching this decision, we remind the parties that this appeal does not lend itself to an easy resolution. The requested record does not, as The Courier apparently believes, clearly segregate information pertaining to that portion of Judge McDonald's pension derived from taxpayer dollars, in which the public has a legitimate interest, from purchased service credit and personal contributions, in which the public's interest is eclipsed by KRS 61.661. The fact that the information is inextricably commingled and therefore "distorted" and "misleading", on the other hand, does not constitute a basis for a blanket denial of the request, or relieve the JFRS of its duty to disclose the nonexempt information. We believe that the decision we reach represents a reasoned resolution of this dilemma, and that we strike a rational balance between the right of public access and the requirements of governmental confidentiality by affording The Courier access to those entries on the record which will enable it to calculate Judge McDonald's retirement benefits which were derived from his participation in the JFRS while maintaining the confidentiality of benefits he receives as a result of his earlier participation in the Kentucky Employees Retirement System.
We are not persuaded by the JFRS's argument that KRS 6.878(1)(a) shields all or any portion of the pension computation form from disclosure. With reference to this exception, the Attorney General has observed:
"The unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure may cause inconvenience or embarrassment." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994) citing KRS 61.871. In spite of this "manifest intention to enact a disclosure statute," the General Assembly has mandated that certain records should be excluded from public access. Id. Among these are records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a). From this exemption:
Beckham at 578. In denying access to public records under the exemption, the burden of proof rests with the public agency. KRS 61.880(2)(c).
96-ORD-243, p. 3. It is the judiciary that has established the standard by which we analyze the propriety of a public agency's reliance on KRS 61.878(1)(a) to deny access to public records. In
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the Kentucky Supreme Court recognized that the Open Records Act "exhibits a general bias favoring disclosure, " Id. at 327, and formulated a balancing test in which the public's interest in insuring that its agencies are properly executing their statutory functions is measured against an individual's interest in the nondisclosure of records containing information that touches upon the intimate or personal features of his or her life. Resolution of the question of the propriety of the agency's reliance on KRS 61.878(1)(a) turns on whether the offense to personal privacy which would result from disclosure of the information outweighs the benefit to the public. As noted, the "clearly unwarranted" language found in KRS 61.878(1)(a) tips the scales in favor of disclosure.
Although the courts have recognized that "few things in our society are deemed of a more intimate nature than one's income[, and that] this information is commonly treated circumspectly," Zink at 829, the same degree of circumspection has not been accorded the income of a public servant. The principle that the salary of a public servant is a matter of legitimate public interest, and records reflecting a public servant's salary must be made available for inspection, is as old as the Open Records Act itself. In OAG 76-717, this office held that the public is entitled to know the names and salaries of public servants. This, and subsequent opinions, were premised on the notion that these are matters in which the public has an interest since public servants are carrying on the public's business at public expense. See also, OAG 85-94; OAG 86-38; OAG 87-76; OAG 88-13; OAG 89-97; 93-ORD-144; 97-ORD-85; 98-ORD-184. Public servants must therefore accept a reduced expectation of privacy in their income, and cannot assume that that information will be treated circumspectly.
An obvious corollary of this principle is that records reflecting time spent in public service do not implicate a legitimate privacy interest. At page 3 of 96-ORD-239, the Attorney General observed:
An analysis of the propriety of an agency's invocation of the privacy exemption begins with a determination whether the information contained in the records withheld is of a personal nature. [Citation omitted.] 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[, and] as such, no personal privacy is involved . . . ."
Accordingly, public servants do not have a reasonable expectation of privacy in records relating to time spent in public service. It is a short logical step to the principle that a public servant has a reduced expectation of privacy in compensation received from the state in consideration of past service to the state, particularly in view of the fact that his compensation is a direct function of his salary received and years of service.
Against this negligible privacy interest we weigh a significant public interest in disclosure. We cannot agree with the JFRS that no open records related public purpose is served by disclosure of the disputed record. Pursuant to KRS 21.530 and 21.540, the JFRS is charged with the administration of the judicial retirement system, and information contained in that record directly discloses how the agency executes this charge. Fundamental to this statutory charge is the duty to properly allocate pension funds to participating judges like Judge McDonald. Disclosure of the record will enable the public to oversee the execution of this integral duty of the JFRS. We believe that the analogy the JFRS draws to the private employees in Zink v. Commonwealth , above, is flawed. The public's interest in records relating to a private employee injured in a private sector workplace who must satisfy certain filing requirements in order to qualify for workers compensation benefits, is markedly different from the public's interest in records relating to a public servant who has retired from public employment but is compensated for past service with public funds. While disclosure of personal information contained in records in the case of the private employee will "reveal[] little or nothing about an agency's own conduct," Zink at 829, disclosure of records in the case of a retired judge participating in a state-funded retirement system will subject the agency charged with administration of that system to meaningful public scrutiny. We therefore conclude that the public's interest in disclosure of the record outweighs the judge's negligible privacy interest and the disputed record cannot properly be withheld on the basis of KRS 61.878(1)(a).
Our analysis does not end here. As noted above, both exempt and nonexempt information has been inextricably commingled in the single record which is responsive to Mr. Meyer's request. To the extent that a portion of Judge McDonald retirement pension is derived from Kentucky Employee Retirement System service which he purchased with personal funds, and the record discloses the amount of service transferred, the total service (which includes transferred service), and the statutory monthly pension (which is calculated on the basis of total service, including transferred service), that record cannot be disclosed in its entirety. KRS 61.661(1), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 provides that with respect to the Kentucky Retirement System:
Each current, former, or retired member's account shall be administered in a confidential manner and specific data regarding a current, former, or retired member shall not be released for publication unless authorized by the member[.]
In light of this provision, we believe the JFRS is prohibited from disclosing the referenced portions of Judge McDonald's pension computation form. Disclosure of the remaining nonexempt portions will, however, enable The Courier-Journal to calculate retirement benefits derived from the Judicial Retirement System based on his years of service, salary in the sixty months preceding retirement, and the annual accrual rate, which he elected, and which we believe must also be disclosed. We do not believe that the protection afforded by KRS 61.661(1) can be read so broadly as to extent to retired members of the JFRS, and no similar provision exists in that statutes governing that system. This reflects the legislature's judgment which we are not empowered to question or second guess.
Pursuant to KRS 61.878(4), the JFRS may redact the exempted material but must in our view, release the remaining nonexempt material. This resolution of the appeal will promote the goal of public accountability, and at the same time, avoid the problem of presenting "a false and misleading impression in the public's mind as to the amount of public money being paid to the recipient."
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.
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."