Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether actions of the Kentucky Fair and Exposition Center (KFEC) relative to the open records requests of Joan F. Cash violated the Open Records Act. For the reasons that follow, we conclude that the responses of the KFEC were consistent in part and inconsistent in part with the requirements of the Act.
By letter dated July 8, 2002, Ms. Cash requested:
". . . a listing of the hourly wage and pay rate for each person who is or has been employed as a tollbooth gate attendant during the years 2001 and 2002 at the Kentucky Fair and Exposition Center, 937 Phillips Lane, Louisville, KY 40209."
In her letter of appeal, dated July 15, 2002, Ms. Cash stated that, on Tuesday, July 9, 2002, she had hand-delivered her request to the KFEC in Louisville, KY, for placement in the mailbox of the Personnel Department and, as of the date of her letter, she had yet to receive a response to her request. Ms. Cash argued that the failure of the agency to respond to her request within three business days constituted a violation of the Open Records Act.
By letter, dated July 15, 2002, Harold Workman, President & CEO, KFEC, responded to Ms. Cash's July 8, 2002 request. In his response, Mr. Workman acknowledged receipt of her request on July 10, 2002 and denied the request, advising her:
A copy of your letter was forwarded to the Payroll Department for the Fair and Exposition Center. However, I was advised by personnel in that department that no document exists in their files that lists the hourly wage and pay rate for each person listed in your letter. The only records of the department that relate to your request list the amount of wages paid to these individuals. Since no document exists that satisfies your request I am unable to provide you with a copy of such document. Under the Open Records Act, this agency is also not required to create such a document in order to respond to your request.
By letter dated July 20, 2002, Ms. Cash advised this office that she had received the response from KFEC on July 15, 2002, and stated that her request had been denied on the ground that no such document exists. In addition, she argued:
I am filing this appeal on the grounds that I believe this agency is subverting the intent of KRS 61.870 to 61.884 as the following examples will serve to indicate. I am a tollbooth gate attendant and am paid an hourly pay under the Imprest/Petty Cash Authority 394, paragraph 5 which authorizes persons such as myself to be paid through a "petty cash payroll" . The records of this "petty cash payroll" have been housed in computer files entitled 'Petty Cash employee master records.' Through the use of these files, there is the capability to generate a master list of all petty cash employees which would include data such as hourly pay rate. Additionally, I have in my possession a copy of an hourly pay rate list which was housed in my personnel file at this agency which indicates it was pulled from a "P.C. salary file".
Given the above information, I believe that this agency does have the documents that I requested but are trying to subvert my attempt to procure them because I did not use the proper nomenclature in my request. Please investigate this matter so closure may be brought to this issue.
After receipt of Notification of the appeal and a copy of Ms. Cash's letter of appeal dated July 15, 2002, Richard Carroll, Assistant Attorney General, by letter dated July 24, 2002, provided this office with a response to the issues raised in Ms. Cash's letter of appeal. Mr. Carroll, in relevant part, advised:
As I recall in the morning of Wednesday, July 10, 2002, Mr. Harold Workman, President of the Board, contacted me regarding an Open Records request from Ms. Cash that had been received in the Personnel Department for the Fair Board that day. Following our phone call a copy of Ms. Cash's July 8, 2002, letter was faxed to my office from the Fair Board offices. (A copy of the fax is enclosed) At the top of the document you will note that it was sent on July 10 at 11:20 AM. At the bottom of the document there is a stamp that indicates the letter was initially received in the Department at the Fair and Exposition Center of July 10, 2002. On Monday July 15, 2002, Mr. Workman sent a reply to Ms. Cash's July 8 letter. (A copy of that response is enclosed) Since it appeared to Fair Board personnel that the letter was received on Wednesday the 10th, the three-day response period as required in KRS 61.880(1) would not begin to run until Thursday the 11th. This would mean the response was not due to be sent, as opposed to being received as indicated by Ms. Cash, until Monday the 15th.
After receipt of the notification I spoke with certain Fair Board personnel to obtain more information on when the initial letter was received and the process used regarding the handling of the letter. Mr. Workman advised me that as indicated in Ms. Cash's July 15 letter, there is a mailbox for the Personnel Department located at the reception desk for the main offices of the Fair & Exposition Center. If Ms. Cash dropped off the letter at the reception desk on July 9, Mr. Workman believes it must have been placed in the Personnel Department mailbox late in the afternoon on July 9 since the Department did not receive the letter until the following day. According to Mr. Workman mail is delivered twice a day at the facility, in the morning and the afternoon, and workers from the different departments at the facility will pick up the mail from the main reception area based upon the timing of the mail runs. If a letter is placed in the mailbox after staff has retrieved the mail from the afternoon mail run and staff is not notified about additional mail being placed in their mailbox any such mail will not be picked up until the following morning. It is also my understanding that Ms. Cash worked at the Fair and Exposition Center on July 9, 2002, until approximately 3:00 PM. Therefore if Ms. Cash delivered her letter following the end of her shift on the 9th and if staff for the Personnel Department had picked up mail from the reception area in the afternoon prior to Ms. Cash delivering her letter and staff was not contacted to retrieve the letter then the letter would not have been picked up by staff of the Personnel Department until the morning of the 10th. This timing scenario would coincide with Mr. Workman's phone call to me on the morning of the 10th and then faxing the letter to me at 11:20 AM.
By letter to this office, dated July 29, 2002, Mr. Carroll provided a response to the claims raised in Ms. Cash's letter of July 20, 2002 to this office. In this response, he explained:
After receiving a copy of Ms. Cash's July 20th letter I spoke with individuals in the payroll department, the personnel department, and the Security and Admission Control department where Ms. Cash is assigned. Apparently the payroll department has the capability to generate a list that satisfies Ms. Cash's request and has done so in the past at the request of management at the Fair and Exposition Center. However, the payroll department does not maintain a copy of such list. Instead once the list is generated it is sent on to the manager who made the request for the information or document. Apparently Mr. Workman was also advised by staff in the payroll department that no copy of the list was maintained in payroll. Unfortunately he was not advised if copies of the list had been printed out that would have been responsive to Ms. Cash's request. Therefore, his July 15, 2002 response to Ms. Cash's request was correct. In addition the payroll department was the area of the agency most likely to have such a list so that is why the request was forwarded to the department.
I then contacted personnel in the department where Ms. Cash is assigned and inquired if they had any such list in their possession. In response I was provided with a copy of a list that is dated November 2, 2001. I was advised this was the only list the department has in its possession that would satisfy Ms. Cash's request. I have also enclosed a copy of that list for your review. I have also sent a copy on to Ms. Cash but have deleted the social security numbers of the employees based upon the privacy exemption allowed for under KRS 61.878(1)(a).
I also checked with staff in the personnel department and they assured me they do not have any document in their possession that would satisfy Ms. Cash's request other than the one document mentioned in her July 20 letter.
There was no intent on the part of the agency to subvert the intent of the Open Records Act when it responded that no documents existed that were responsive to Ms. Cash's request. The logical place where such a record would reside was consulted and staff advised no such document existed. In fact that department does not maintain such a document. Instead it only generates the document at the request of management. Therefore there was no document to provide to Ms. Cash. Also, it has been a long standing principle in previous Open Records decisions, that an agency is not required to generate a document in order to satisfy a request for records. See OAG 89-61. Thus, even though the agency may be able to generate a document to satisfy Ms. Cash's request, it is not required to do so.
Therefore it is hereby requested that Ms. Cash's request to find the agency subverted the intent of the Act be denied.
By letter dated August 1, 2002, Ms. Cash provided this office with a response to Mr. Carroll's June 29, 2002 letter. In this response, Ms. Cash acknowledged receipt of the copy of the 2001 list that enumerated the hourly pay rate of the Petty Cash tollbooth attendant staff. She stated that satisfied one-half of her original request, but that the other half of her request for a copy of the pay rate listing for the tollbooth attendants for the year 2002 had not been satisfied. She argues in part:
. . . To satisfy my request expeditiously, the management of the KY Fair and Exposition Center could "request" that a current 2002 Petty Cash hourly pay rate listing for tollbooth attendants be generated; in fact, it is incomprehensible that a current pay rate listing is not in the office of those who supervise these workers. Because the tollbooth attendant personnel fluctuate greatly (i.e. in number of workers; individuals leaving employment and individuals being hired), it seems ludicrous to state that such a current pay rate listing does not exist. How could supervisory staff expeditiously access current pay rate information for their entire staff without such a listing? . . . .
We are asked to determine whether the responses of the KFEC to Ms. Cash's requests violated the Open Records Act. For the reasons that follow, we conclude the agency's responses and actions were only partially consistent with the Act.
We address first the procedural issue of whether the initial response to Ms. Cash's original request was untimely and an attempt to subvert the intent of the Open Records Act.
KRS 61.880(1) establishes procedural guidelines for agency response to an open records request, including a three-day deadline for that response. The statute thus provides, in relevant part:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturday, 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.
In construing this provision, the Attorney General has repeatedly recognized that "[t]he computation of time statute, KRS 446.030(1)(a), [is] applicable to time requirements of the Open Records Act. " 96-ORD-207, p. 2; see also 99-ORD-188, 01-ORD-3, and 02-ORD-81. That statute provides:
In computing any period of time prescribed or allowed by order of court, or by any applicable statute, the date of the act, event or default after which the designated period of time begins to run is not to be included.
Thus, the three-day deadline for agency response to an open records request excludes the day the request was received.
Ms. Cash states that on July 9, 2002, she hand-delivered her request to the agency by placing it in the mailbox of the Personnel Department. KFEC records indicate the request was received on July 10, 2002, and provide evidence consistent with and supporting this contention. In addition, KFEC provided an explanation that Ms. Cash may have placed the request in the Personnel Department's mailbox late in the afternoon on July 9th, after staff had picked up the mail from the afternoon mail run and, thus, it was not received until the following morning, July 10th.
Under these facts and absent proof of intent to delay timely response to the request, we are not prepared to say that the KFEC 's actions in this regard constituted a subversion of the intent of the Open Records Act. 02-ORD-094. Nevertheless, we encourage the agency to make every reasonable effort to insure that its open records requests are received and processed in a timely manner in accordance with the requirements of KRS 61.880(1).
We next address the remaining substantive issue relative to Ms. Cash's request for a copy of the pay rate listing for the tollbooth attendants for the year 2002.
In its responses, KFEC argues that no list of the requested pay rates exists for the year 2002 and the Open Records Act does not require a public agency to create a record that does not exist. It is correct, as KFEC argues, that the Open Records Act does not require a public agency to prepare a list, or create a database, to satisfy a request for records when there is no such list or database. 93-ORD-118. Assuming arguendo that extracting information from an existing database to conform to the parameters of an open records request is the same as creating a list or record, the Attorney General has recognized that an agency is not required to create a list or record. Thus, the agency properly denied the request for a list of the 2002 pay rates, as none existed.
However, KFEC has indicated that the requested information relative to the 2002 pay rates for tollbooth attendants exists in the KFEC's database. An agency's database is a "public record," as that term is defined in KRS 61.870(2). 00-ORD-206; 95-ORD-82.
This office has long held that the public is entitled to know the 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). 98-ORD-99; 96-ORD-274; OAG 88-13.
Since information related to a public employee's salary or rate of pay is not information exempt from disclosure under the Open Record Act and the requested pay rates exist in the KFEC's database, we conclude that the KFEC must make the database available for Ms. Cash's inspection with appropriate personal information, such as social security numbers and home addresses, redacted as required by 61.878(4), so that she might extract the nonexcepted information she seeks.
In this regard, the Attorney General has held that the redaction of exempt information from an existing record (or database) does not create a new record. 95-ORD-82. In the alternative, and at its discretion, the agency could prepare a list of the 2002 pay rates from the database, as it did for its management in 2001, with the personal information redacted.
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.
Joan F. Cash10328 Keystone TraceLouisville, KY 40223
Harold WorkmanKentucky Fair & Exposition CenterP.O. Box 37130Louisville, KY 40233-7130
Barbara Burkhead WhitleyKentucky Fair & Exposition CenterP.O. Box 37130Louisville, KY 40233-7130
Richard C. CarrollOffice of the Attorney General700 Capitol AvenueCapitol Building, Suite 118Frankfort, KY 40601-3449