Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Rockcastle County 911 Board violated the Open Records Act in the disposition of Michael Sheliga's October 26, 2004, request for operational records maintained by the Board. For the reasons that follow, we find that the Board's disposition of Mr. Sheliga's request was procedurally deficient and substantively incorrect.
In a letter directed to the "Rockcastle County 911 Open Records Officer," Mr. Sheliga requested that he "be allowed to inspect . . . during the regular office hours of Rockcastle County 911 . . .," or, alternatively, that he be provided copies of, records identified as follows:
(1) The minutes of all RC 911 Board meetings for the previous four months.
(2) Public employee timesheets (See 96-ORD-239) for the first time period of each quarter (The first weeks of January, April, July and October) for the previous two (2) years for all 911 employees.
(3) Resumes, applications for employment, all complaints and all records concerning resolution of those complaints, reprimands and other disciplinary actions and salary histories for 911 Director Bonne Roarke (See 02-ORD-197, 02-ORD-140).
(4) Letter of resignation or termination letters for any RC 911 employees since Director Roarke's hiring.
(5) Memos, letters or other records between any of the following parties (or members of the following parties) that relate to RC 911 for the previous six (6) months: the Rockcastle County 911 Board, Rockcastle County 911 Director Bonnie Roarke, RC 911 Dispatchers, RC Fiscal Court, the RC Judge Executive.
(6) Policy Guidelines for RC 911 created by the RC 911 Board.
Mr. Sheliga agreed to pay reasonable copying and postage charges calculated on the basis of the noncommercial purpose underlying his request. Having allegedly received no response to that request 1, he initiated this appeal on November 17, 2004 2.
Upon receipt of this office's notification of Mr. Sheliga's appeal, Rockcastle County Judge Executive Buzz Carloftis responded on behalf of the 911 Board. He advised that before responding to Mr. Sheliga's request, he "spoke with the Governor's Office of Local Development" for assistance in preparing the response, a copy of which was attached. Continuing, Judge Carloftis observed:
I have always made certain that all meetings held in this courthouse for public business are open - all meetings of the Rockcastle County Fiscal Court are posted on the courthouse wall for inspection. Additionally, all meetings of the local 911 board of directors are open to the public.
In closing, Judge Carloftis offered assurance that the Board would "do all that is necessary and possible to meet this open records request. . . ."
In its October 29 response, the Rockcastle County 911 Board acknowledged that "[a]ccording to the guidelines from the state, minutes of the 911 board meetings are open records [, but that] discussions of personnel matters in closed session . . . do not fall in this category." With reference to the remainder of Mr. Sheliga's request, the Board advised:
Item #2 Employee timesheets do not automatically fall into the category of 'open records'.
Item #3 Your request for "resumes, applications for employment, complaints, and all records concerning resolution of those complaints, reprimands, and other disciplinary actions and salary histories for 911 Director Bonnie Roark" is not clear. Resumes, applications for employment, complaints and records concerning their resolution are not considered by us as 'open records'.
Item #4 Your requests for letters of resignation or termination letters are not public records.
Item #5 Policy Guidelines for the local board are not available for this office. They are, however, open records.
The Board failed to address Mr. Sheliga's request for "[m]emos, letters, or other records between [Rockcastle County 911 Board and/or its members, Rockcastle County 911 Director Bonnie Roarke, Rockcastle County Dispatchers, Rockcastle County Fiscal Court and/or its members, and/or the Rockcastle County Judge Executive] that related to Rockcastle County 911 for the previous six months." We find that, with the exception of the decision to disclose minutes of its meetings, the Board's disposition of Mr. Sheliga's request was procedurally deficient, substantively incorrect, and constituted a violation of the Open Records Act.
To begin, the Rockcastle County 911 Board violated KRS 61.880(1) in preparing its denial of Mr. Sheliga's request. The statute provides, in part:
[A]n 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.
Leaving aside the issue of the timeliness of its response, we find that the Board erred in failing to state the specific exception arguably authorizing non-disclosure of the records identified in Mr. Sheliga's request and to explain how the cited exception applies to the records withheld. In construing KRS 61.880(1), the Kentucky Court of Appeals has determined that an agency's custodian of records must "provide particular and detailed information in response to a request for documents," and that a "limited and perfunctory response" does not "even remotely compl[y] with the requirements of the Act. . . ." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). The Board cited no statutory authority of any kind and offered no explanation, detailed or otherwise, in support of its denial of Mr. Sheliga's request, thereby violating KRS 61.880(1). As this office has so often opined, "[t]he procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 3. Failure to strictly adhere to these requirements is inimical to the public good. We urge the Board to review the cited provision to insure that future responses conform to the requirements of the Open Records Act.
Turning to the substantive issue on appeal, we find that the Board also erred in characterizing employee timesheets, resumes, applications for employment, complaints, reprimands, disciplinary records, salary histories, letters of resignation, and termination letters as non-public records. In light of the foregoing discussion, it is unclear on what basis the Board makes this claim. It is abundantly clear, however, that any and all portions of such records as relate to an individual's public employment are open records, and must be made available for inspection by the public upon request. We will not unnecessarily lengthen this decision with the extensive body of decisions recognizing that "[t]he private rights of the public employee extend only to matters which are not related to the performance of his work," OAG 80-43, p. 3, and that KRS 61.878(1)(a), the privacy exception to the Open Records Act, "applies only to matters entirely unrelated to the performance of public employment. " OAG 78-133, p. 2.
Bearing in mind that matters related to the performance of public employment are matters of legitimate public interest superior to any privacy rights asserted, this office has consistently held that a public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's application and resume reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717, OAG 87-37, OAG 91-41, OAG 91-48, OAG 92-59, and 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example, OAG 78-133, OAG 91-20, OAG 92-34, 95-ORD-123, and 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records. 94-ORD-108. It is equally well established that employee timesheets must be made available for public inspection and copying upon request. OAG 84-151, 96-ORD-239. We therefore find that the Rockcastle County 911 Board must allow Mr. Sheliga to inspect, or provide him with copies of, the requested timesheets, resumes, applications for employment, complaints, reprimands, disciplinary records (including termination letters), salary histories and letters of resignation. The Board may, of course, redact any portion of those records that contain purely personal information, such as home address, Social Security numbers, or references to medical conditions, pursuant to KRS 61.878(4) before releasing the records to Mr. Sheliga.
Further, having failed to advance any argument in support of its apparent denial of Mr. Sheliga's request for memoranda and letters relating to Rockcastle County 911 for the previous six months, and exchanges by the Board, Director Roarke, 911 dispatchers, the Rockcastle Fiscal Court, or Judge Executive Carloftis, we find that the Board must release these records to him unless it can articulate a basis for denying him access in terms of one or more of the exceptions to the Open Records Act. Here, as above, the Board entirely failed to meet its statutory burden of proof in resisting disclosure of public records. KRS 61.880(2)(c).
With reference to the final category of requested records, to wit, policy guidelines for the Rockcastle County 911 created by the Board, we find that the response issue on the Board's behalf was deficient. Acknowledging that such guidelines are open records, Judge Carloftis advised that they were "not available from this office." Because he elected to respond on behalf of the Board, we believe it was incumbent upon Judge Carloftis to locate and make available to Mr. Sheliga the guidelines for the Rockcastle County 911. At a minimum, it was incumbent on him, pursuant to KRS 61.872(4), to notify Mr. Sheliga that he did not have custody or control of the guidelines and "furnish the name and location of the official custodian of the agency's public records. " The Board cannot evade its duty to disclose its guidelines, or any other non-exempt public record, by issuing its response to an open records request through an individual in whose custody the requested records do not reside. The Board should take immediate action to correct this, and all other, deficiencies identified in this decision, and to insure that Mr. Sheliga is afforded access to the non-exempt records identified in his request.
A party aggrieved by this decision may appeal it by initiating an 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 proceedings.
Distribution:
Mr. Michael Sheliga180 West Main StreetMt. Vernon, KY 40456
Ms. Bonnie RoarkeRockcastle County 911 BoardRockcastle County Courthouse Mt. Vernon, KY 40456
Rockcastle County Judge Executive Buzz CarloftisP. O. Box 755205 East Main StreetMt. Vernon, KY 40456
Footnotes
Footnotes
1 This issue is disputed. The letter attached to the response prepared by the Board following receipt of notification of Mr. Sheliga's appeal, and addressed to Mr. Sheliga, is dated October 29, 2004. However, Mr. Sheliga states that he had received no response as of November 17, 2004. This office is not equipped to resolve a factual dispute of this nature.
2 Mr. Sheliga's appeal reached the Office of the Attorney General on November 29, 2004.