Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of McHenry/McHenry Volunteer Fire Department violated the Kentucky Open Records Act in partially denying the request of Mike Nance for copies of "All records of SPECIAL TRAINING such as [CPR/AED], etc. of members listed as active members" for 2002, 2003, and 2004, and both the current MVFD bylaws, and those in effect for 2002, 2003, and 2004. Because the City provided Mr. Nance with copies of the specified bylaws, any related issues are now moot; the Attorney General must therefore decline to issue a decision as to those records per 40 KAR 1:030, Section 6. In failing to respond in writing to Mr. Nance's request within three business days, as mandated by KRS 61.880(1), the City committed a procedural violation of the Open Records Act. Because the MVFD admittedly qualifies as a public agency pursuant to KRS 61.870(1)(h), and the requested training records are directly "related to functions, activities, programs or operations funded by state or local authority, " the records are properly characterized as public records within the meaning of KRS 61.870(2). Accordingly, the MVFD erred in denying Mr. Nance's request as to those records relating to training received by the firefighters which is funded by state or local authority funds; the fact that no public funds are expended to compensate the firefighters does not alter our decision as to the accessibility of their training records regardless of where those records are maintained within the agency.
By letter dated August 12, 2005, Toni McDonald, City Clerk, responded to Mr. Nance's request dated August 1, 2005, on behalf of the City. With respect to the bylaws, the City agreed to honor Mr. Nance's request upon receiving advance payment of the prescribed copying fee. However, the City does "not believe that the personnel records of the [MVFD], whether [relating to] active or inactive [firefighters] " are subject to inspection. In support of this position, the City relies upon the definition of public agency codified at KRS 61.870(1)(h). Although the MVFD "does in fact receive over twenty-five (25%) of its funds from state or local governmental authorities," none of the funds received are disbursed to "any volunteer firefighter for any work which he may or may not do." Implicitly relying upon KRS 61.870(2), Ms. McDonald contends that "records which are related directly to any funds provided to [the MVFD], are in fact subject to disclosure." Accordingly, the City is both willing and statutorily required to provide Mr. Nance "with information which relate[s] to the disbursement of those funds." However, the City does not believe "that any funds received by the [MVFD] relate to the volunteer firefighter's personnel records."
In a letter directed to this office via facsimile on August 20, 2005, Mr. Nance initiated this appeal from the denial of his request. To begin, Mr. Nance asserts that the City did not respond in three business days as required by the Act. According to Mr. Nance, the training records requested are records required by "state regulation, insurance regulation, and local department guidelines for certification as an active Kentucky Fire Fighter." In conclusion, Mr. Nance notes that our office previously issued a decision addressing the accessibility of personnel records which "clearly outlined the responsibilities of the City of McHenry in regards to open records."
In 96-ORD-120, the Attorney General described the various types of fire departments (city fire departments, county fire departments, and fire district fire departments) , noting that each would "be a public agency as the term is defined in KRS 61.870(1) and thus subject to the terms and provision of the Open Records Act. " Id., p. 2. With respect to the status of volunteer fire departments such as the MVFD, this office observed:
A fourth type of fire department is a volunteer fire department, sometimes organized as a nonprofit corporation, which is an independent organization, disassociated from the city or county, except insofar as a contractual relationship is concerned. The only way this type of fire department could be considered a public agency is if it derives at least 25% of its funds expended in the state from state or local authority funds. See KRS 61.870(1)(h) and 94-ORD-16, copy enclosed.
Id., p. 2; See also 00-ORD-93. Because the MVFD has conceded that it derives over twenty-five percent (25%) of the funds expended by it in the Commonwealth of Kentucky from "state or local governmental authorities," and therefore qualifies as a public agency pursuant to KRS 61.870(1)(h), further analysis of this threshold issue is unnecessary.
As a public agency, the MVFD is obligated to comply with both the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records. KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, 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. An 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount to [] substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-181, p. 4; 04-ORD-163; 04-ORD-106.
By its express terms, KRS 61.880(1) requires a public agency to issue a written response within three business days of receiving a request. In general, a public agency cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999). This is a fundamental premise of the Open Records Act, underscored by the three day response time codified at KRS 61.880(1). Although the burden on the agency to respond within three working days is, not infrequently, an onerous one, the only exceptions to this general rule are found at KRS 61.872(4) and (5), neither of which the MVFD invoked here. 02-ORD-165, p. 3. To the contrary, the MVFD offers no explanation for the delay in responding to Mr. Nance's request.
As consistently recognized by the Attorney General, the procedural requirements codified at KRS 61.880(1) "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 03-ORD-067, p. 2, citing 93-ORD-125, p. 5. Failing to respond in a timely fashion as the MVFD did here, constitutes a clear violation of KRS 61.880(1). 1 In short, compliance with these procedural guidelines is mandatory, and is as much of a duty owed by a public agency as the provision of other services to the public. Id.
With respect to those responsive records which the MVFD has already provided to Mr. Nance, any related issues are moot. 40 KAR 1:030, Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. Absent evidence to the contrary, this office assumes that Mr. Nance has received copies of the MVFD bylaws for 2002-2005, or will, upon receipt of the reasonable copying fee and postage if appropriate, consistent with KRS 61.874(1). That being the case, any issues relative to the bylaws are now moot, and this office must decline to issue a decision on the merits as to those records. In light of this determination, the question becomes whether the MVFD violated the Open Records Act in denying Mr. Nance's request for training records because none of the funds received from state and local government authorities are expended to compensate the firefighters whose training records are at issue.
Although our research has revealed no authority that is directly on point, this office is not without guidance in resolving the question presented. Having established that Seven Counties Services, Inc. is a public agency per KRS 61.870(1)(h), this office rejected the argument that records relating to Seven Counties' employees are not public records based on the following:
Because it receives more than 25 percent of its funds from state or local authority, Seven Counties' records are public records unless they "are not related to functions, activities, programs, or operations funded by state or local authority. " KRS 61.870(2). Despite the fact that its employees' salaries are, by its own admission, primarily funded through state and local government revenue, Seven Counties argues that employment records are not public records. Seven Counties relies heavily on the Kentucky Court of Appeals' decision in Hardin County v Valentine, [Ky. App., 894 S.W.2d 151 (1995)].
In Hardin County v Valentine, the Court of Appeals held that a request submitted by a former patient to a publicly funded hospital for copies of his medical records need not be honored because those records did not relate to the hospital's operations. The court noted that "the patients of a publicly-owned hospital have as great an expectation that their medical records will not be subject to public scrutiny as do the patients of private hospitals." Hardin County v Valentine, p. 152. We do not believe that employees of an agency whose salaries are funded by state and local authority can reasonably assert the same right of privacy.
In our view, Seven Counties' employees are an integral part of its operations. The term operate means "to conduct or direct the affairs of (a business, etc.)," and the term operation "a process or action that is part of a series in some work." Webster's New World Dictionary Second College Edition (1974). Because these employees' salaries are publicly funded, the public has a legitimate interest in records pertaining to their employment such as their position descriptions, salaries, resumes (reflecting relevant prior work experience, educational qualifications, and information regarding ability to discharge the responsibilities of employment), and disciplinary actions stemming from job-related misconduct. OAG 76-717; OAG 91-41; 96-ORD-86. Conversely, the public cannot legitimately ingress upon matters which are of a purely personal nature, including the employees' home addresses, social security numbers, medical records, and marital status since disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a); OAG 79-275; OAG 91-48; 94-ORD-91. As we noted at page 2 of 97-ORD-65, "Whatever status the employees of Kentucky River Community Care, Inc., may perceive themselves to hold, it is apparent that if their salaries are paid from public funds the public's interest in monitoring the expenditure of those funds outweighs the employees' expectation of privacy. "
02-ORD-222, pp. 6-8, quoting 97-ORD-140. Although the instant appeal is distinguishable from 97-ORD-140 insofar as members of the MVFD apparently do not receive salaries from public funds, or any other source, the reasoning is equally applicable as to the training records at issue in our view. To the extent that public funds are expended on the training received by the members of the MVFD, the public has a significant interest in monitoring the expenditure of those funds by accessing related records that outweighs the volunteer firefighters' expectation of privacy.
As long recognized by the Attorney General, "as far as open records are concerned, it is apparently the policy of the Legislature that wherever public funds go, public interest follows." 97-ORD-140, p. 3, citing OAG 76-648, p. 2. Pursuant to KRS 61.870(2) :
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics which are prepared, owned, used, in the possession of or retained by a public agency. "Public record" shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.
In our estimation, records relating to the qualifications or training of volunteer firefighters are directly related to the "functions, activities, programs, or operations" of the MVFD; the MVFD concedes that it receives over 25% of the funds expended by it in the Commonwealth from "state or local governmental authorities." Logic dictates that firefighters, whether volunteers or full-time employees, must complete training before performing their duties. Absent evidence to the contrary, this office assumes that a percentage of those funds are necessarily allocated for training expenses if not for salaries. Accordingly, the training records requested are public records within the meaning of KRS 61.870(2) that must be disclosed; none of the exemptions codified at KRS 61.878(1) have been invoked here nor is this office aware of any that apply.
In denying Mr. Nance's request, the MVFD asserts that the "personnel records" of volunteer firefighters are not subject to inspection because "none of the funds received are distributed to any volunteer firefighter for any work which he may or may no[t] do." To clarify, Mr. Nance requested "records of SPECIAL TRAINING" such as CPR certifications, etc., rather than the type of records which are generally characterized as personnel records - a critical distinction in this context. 2 Because the MVFD is a public agency for purposes of the Open Records Act, and training records like those requested fall within the parameters of KRS 61.870(2), the MVFD violated the Open Records Act in denying Mr. Nance's request. To hold otherwise would elevate form over substance. 3
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.
Mike Nance804 Valley View DriveBeaver Dam, KY 42320
Toni McDonaldCity ClerkCity of McHenryP.O. Box 47McHenry, KY 42354
Chief Ralph MillerMcHenry Volunteer Fire Department P.O. Box 123Beaver Dam, KY 42320
Amanda PerkinsMcHenry City Attorney119 E. Center StreetHartford, KY 42347
Mayor Dennis ChinnCity of McHenryP.O. Box 47McHenry, KY 42354
Footnotes
Footnotes
1 Because the Attorney General addressed the timeliness issue at length in resolving a prior appeal filed by Mr. Nance against the City of McHenry/MVFD (04-ORD-105), this office will not belabor the point any further.
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2 Generally speaking,personnel records are subject to inspection. In 03-ORD-012, this office held that the Berea Independent School District improperly denied a request for the complete personnel records of named employees. In so doing, the Attorney General reasoned that "a request for access to a personnel file requires no greater degree of specificity than any other open records request," and, therefore, the agency must "determine what is and is not subject to Open Records." Id., p. 7. As this office observed, there is ample authority to guide an agency in making this determination. Quoting extensively from 97-ORD-66, the Attorney General held:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's [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, 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, 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records, and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. See, for example, OAG 79-275, OAG 87-37, OAG 90-60, OAG 91-81, 94-ORD-91. Such matters are unrelated to the performance of public employment. Employee evaluations have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80-58, 82-204, 86-15, and 89-90.
03-ORD-012, p. 8, citing 97-ORD-66, p. 5; 03-ORD-213. In sum, "these opinions are premised on the idea that a person does not typically work, or attend school, in secret, and, therefore, the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment. " 93-ORD-32, p. 3; 00-ORD-090.
3 In so holding, this office leaves for another day the issue of whether the personnel records of volunteer firefighters that do not receive publicly funded salaries should be open for public inspection.
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