Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Owensboro Municipal Utilities violated the Kentucky Open Records Act in denying the request submitted by Everett C. Hoffman on behalf of his client, the Owensboro Civil Service Association, to inspect and copy records containing "the names of the employees from whom Association dues are being collected - and the amounts and dates of the payroll deductions." Because the instant appeal presents no reason to depart from OAG 82-233 and its progeny, this office affirms the denial by OMU of the Association's request for documents and information concerning payroll deductions on the basis of KRS 61.878(1)(a).
By letter directed to Sue Napper, Director of Administrative Services, Mr. Hoffman submitted the request based on his understanding that "OMU has steadfastly and repeatedly refused to provide any information to the Association other than the total amount of gross receipts from all payroll deductions." More specifically, OMU has "refused to disclose the names of employees for whom OMU withholds Association dues and the amounts withheld from each employee." Having explained why, in his view, OMU has a legal obligation to both parties (the employee and the Association), Mr. Hoffman further asserted the Association has "a right to the information it has requested under the Kentucky Open Records Act. " Citing KRS 61.884, Mr. Hoffman contended that the Association "has a right to inspect and copy all public records in OMU's possession, custody, or control relating to the Association." Because the Association has "not requested Social Security Numbers or any other information about individual employees of a personal nature," Mr. Hoffman argued there are "no legitimate privacy concerns that would justify OMU's withholding of this information. The employees in question are already members of the Association who have authorized their dues to be withheld from their paychecks and forwarded to the Association."
In accordance with "OMU's legal obligations," including the Open Records Act, Mr. Hoffman requested the following:
1. For each current employee of OMU who has authorized OMU to withhold/ deduct[] from his/her paycheck fees to [be] paid to the Association, a copy of the employee's most recent authorization document;
2. For each current employee of OMU who has revoked a prior authorization to withhold/ deduct fees to be paid to the Association, a copy of the most recent revocation document;
3. An itemized listing of all payroll deductions for Association dues made in Calendar Year 2006, including the following information for each deduction: the last name and first name of the employee; the amount withheld; and the date of the paycheck from which the dues were deducted. We request that the listing be sorted by last name, first name, and date of deduction; and
4. An itemized listing of all payroll deductions for Association dues made to date in Calendar Year 2007, including [see above].
In closing, Mr. Hoffman indicated that his client is "more than willing to discuss ways in which this information could be produced that would impose the least burden on OMU and the Association."
In a letter dated March 8, 2007, Patrick D. Pace, Kamuf, Pace & Kamuf, responded on behalf of OMU. As explained by Mr. Pace:
All OMU employees receive statements reflecting their payroll deductions, including any deductions authorized for dues to the OCSA and these should provide the information you requested. Any employee can obtain a copy of his or her statement or any authorization he or she has given for a payroll deduction, or revocation thereof, upon his or her request. However, this information cannot be provided to someone other than the employee without the employee's authorization.
OMU cannot honor your request on behalf of the OCSA for the payroll deduction documents or information you seek in the items numbered 1. through 4. on page 2 of your letter. These records are exempt from disclosure under KRS 61.878(1)(a). The Attorney General has opined that this exception applies to payroll deductions. OAG 82-233.
In addition, Mr. Pace advised Mr. Hoffman that even if the items being sought were "not exempt as an unwarranted invasion of personal privacy, OMU is not required under the Open Records Act to answer questions, provide information, or compile information. The Act simply requires a public agency to provide reasonably identified records which are not exempt from inspection. " According to Mr. Pace, OMU "has no documents responsive to the items numbered 3. and 4." Citing 03-ORD-239 and OAG 76-375, respectively, Mr. Pace correctly asserted that OMU is "not required to compile or create the information" requested nor is a public agency required to "make a list of items from its records if such a list does not already exist." 1
Reiterating that the Association "does not seek the Social Security Numbers (or dates of birth) of the employees who are its members," Mr. Hoffman initiated this appeal from the denial of his request on behalf of the Association by letter dated March 12, 2007. As explained by Mr. Hoffman, the Association is "an incorporated non-profit organization whose membership is open to employees of OMU upon payment of the required membership dues." On a periodic basis, OMU "collects the dues withheld from employees' paychecks and forwards a single payment to the Association." In his view, "there is no privacy interest that would prohibit the disclosure of the requested information to the Association." Reiterating his contention that OMU "has a legal obligation to provide an accounting of such sums in response to reasonable requests from the Association" as temporary custodian of same, Mr. Hoffman again cites KRS 61.884 in support of his position as the records "clearly relate to the Association - and no doubt mention the Association by name." According to Mr. Hoffman, the employees in question "would no doubt be surprised to learn that OMU is refusing to disclose to the Association their identity and the amount of Association dues being withheld from their paychecks. " In addressing OMU's claim regarding Items 3 and 4 of his request, Mr. Hoffman asserts that "unless OMU discloses the format in which the information is maintained, it is difficult for the Association to request the correct documents."
Upon receiving notification of Mr. Hoffman's appeal from this office, Mr. Pace supplemented his response on behalf of OMU, noting that Mr. Hoffman "has cited no authority in challenging OMU's invocation of the personal privacy exemption for the records sought in OMU's March 8 response to Mr. Hoffman and the Association." In contrast, OAG 82-233, upon which OMU relied as the basis for denial, "represents the long established precedent that an employee's payroll deductions are exempt from disclosure to others under KRS 61.878(1)(a)." Refuting Mr. Hoffman's argument relative to KRS 61.884, Mr. Pace emphasizes the qualifying language ("subject to the provisions of KRS 61.878") in correctly noting this includes KRS 61.878(1)(a). Quoting from 06-ORD-260, Mr. Pace also correctly argues that prior decisions of the Attorney General have indicated that "'the statutory exceptions [codified at KRS 61.878(1)(a) through (n)] swallow the rule that a person must be allowed access to records that relate to him.'" (Citations omitted). In reference to Items 3 and 4, Mr. Pace notes that "no authority is cited by the requesters" and the initial response of OMU that such lists "do not exist and are not required to be made, even if they are not exempt, was proper." To summarize, the denial by OMU "was based upon long recognized interpretations of the unambiguous language of the relevant statutes." Because the instant appeal presents no reason to depart from the reasoning of OAG 82-233, this office affirms the denial by OMU of Mr. Hoffman's request on the basis of KRS 61.878(1)(a). 2
In the absence of a court order authorizing inspection, KRS 61.878(1)(a) authorizes a public agency to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]
In construing this provision, the Attorney General has observed:
KRS 61.878(1)(a) "applies . . . to matters entirely unrelated to the performance of public employment. " OAG 78-133, p. 3. "The private rights of the public employee extend . . . to matters which are not related to the performance of his work." OAG 80-43, p. 3. Paraphrasing the [C]ourt's holding in Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981), in OAG 85-88 we stated that "much of the information found in . . . personnel folders deals with items and facts of a personal nature and no public interest would be served by complete disclosure. " OAG 85-88, p. 2.
00-ORD-090, p. 3, citing 97-ORD-66, pp. 6, 7.
In 03-ORD-012, however, this office held that the Berea Independent School District improperly denied a request for the complete personnel records of named employees, a request which necessarily encompasses the dues authorization and revocation forms at issue, on the basis of KRS 61.878(1)(a). More precisely, 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. In other words, the "agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, [c]ite the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld" pursuant to KRS 61.878(4), as OMU did here. Id. Fortunately, there is ample authority to guide an agency in making this determination. Of particular relevance here, this office held as follows:
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. As previously recognized by the Attorney General, "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. That being said, the Attorney General has also expressly recognized that information of the nature requested falls within the parameters of KRS 61.878(1)(a) because such matters are unrelated to the performance of public employment; our holding today is a logical extension of those decisions.
In OAG 82-233, upon which OMU properly relies, the Assistant State Treasurer asked this office to determine whether "payroll vouchers" of public employees are public records and, if so, whether such records are open records, an issue of first impression. Noting that payroll vouchers are, in fact, "public records" within the meaning of KRS 61.870(2), the Attorney General engaged in the following analysis:
In past opinions we have said that vouchers, check stubs and account books are public records and are not exempt from public inspection. OAG 79-27 and OAG 79-575. As to personnel records of public employees we have said:
. . .
A payroll voucher contains a mixture of exempted and non-exempted 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). . . . The exemptions from mandatory disclosure provided by KRS 61.878(1) are permissive and no law is violated when exempted material is made accessible to the public. A public agency, however, has the right, as a matter of policy, to refuse access to exempted material and may separate exempted material from the non-exempted. It is our opinion that information about deductions for tax sheltered annuities is exempt from mandatory public disclosure and can legally be withheld from the public.
(Emphasis added). See 98-ORD-184; OAG 88-13 and OAG 87-76; see also OAG 82-275 (applying this principle to Deferred Compensation deductions).
In our view, the reasoning of OAG 82-233 is equally applicable on the facts presented. Although the OMU employees who voluntarily became members of the Association might very well be "surprised to learn" that OMU is withholding the requested information, the fact remains that such information is protected by KRS 61.878(1)(a). Contrary to the Association's implicit assertion, if the information is accessible by the Association, it's accessible by the public; neither the identity of the requester nor his purpose in requesting access is relevant. "Since a public agency is required to make records available for inspection without regard to the purpose for which the requester wants to see the record, an agency should have a definite policy as to when it will invoke one or more of the exemptions in KRS 61.878(1)." OAG 82-233, p. 2. In other words, "the exemption should be invoked according to the nature of the record and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. " Id.
As previously recognized by the Attorney General, this position was validated by the Kentucky Court of Appeals in Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828 (1994), wherein the Court observed: "Our analysis does not turn on the purpose for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Applying this principle to an apparent incident of disparate treatment, in OAG 90-50 this office determined that the City of Louisville was required to permit the applicant to use its reader-printer and cassette records to review records stored on 35 mm film and cassette tape inasmuch as the applicant, "his firm (and client) st[ood] in no different shoes than any other citizen in requesting to inspect public records. " Several years later, the Attorney General held that the Boyd County Property Valuation Administrator improperly permitted some individuals, and not others, to inspect and obtain copies of tax maps, property assessment cards, and mapping cards, concluding that the PVA could not "release records, mask information, or provide copies based on the identity of the requester, " but must afford access to public records "uniformly and without reference to the identity of the requester. " OAG 92-30, p. 4. In 1996, the Attorney General held that an inmate requesting access to canteen price lists "st[ood] in the same shoes as any other requester under the Open Records Act" based on the rule that "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligations for receipt thereof." 96-ORD-209, p. 3, citing 94-ORD-20, p. 2. The inmate's "past criminal history" notwithstanding, he could not be subjected to disparate treatment. Finally, in 97-ORD-8, this office held that the Lexington Fayette Urban County Government could not deny representatives of a chiropractic center the right to inspect records placed on a records counter "in order for citizens, insurance companies, and others to request copies" because LFUCG feared that these representatives would "monopolize" the records. In so holding, the Attorney General observed:
With regard to its right to inspect public records [a representative of the Association] stands in the same shoes as any other open records requester. KRS 61.872(1) provides that "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884 , and suitable facilities shall be made available by each public agency for the exercise of this right." Subsection (2) of that provision states that " [a]ny person shall have the right to inspect public records. "
. . .
[Representatives of the center are] member[s] of the public and enjoy[] the same right of access as any other member of the public. This policy of disparate treatment violates the Open Records Law. The reports are available to all or available to none.
Id. at pp. 3-4. (Emphasis added.) 3 As evidenced by the foregoing, OMU is not permitted to disclose the requested information to the Association, notwithstanding its arguably unique status or purpose, unless OMU could also legally disclose the information to any other applicant; this OMU cannot do.
Our conclusion is not altered by the fact that the requester is an attorney representing an organization, the members of which are employees to whom records containing the information relate. Although KRS 61.884 provides that "[a]ny person shall have access to any public record relating to him or in which he is mentioned by name . . . subject to the provisions of KRS 61.878[,]" 4 this office has recognized that provision only "invests an individual with the right to inspect and copy any otherwise nonexempt public record that relates to him or in which he is mentioned by name." 02-ORD-118, p. 2. Consequently, "the statutory exceptions [codified at KRS 61.878(1)(a)-(n)] swallow the rule that a person must be allowed access to records that relate to him." Id.; OAG 85-88; 00-ORD-190. In sum, Mr. Hoffman and his client stand in the same shoes as any other requester, and, therefore, are not entitled to inspect or copy the records in question because the information contained therein is exempt under KRS 61.878(1)(a) .
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.
Everett C. Hoffman
Sue Napper
Patrick D. Pace
Footnotes
Footnotes
1 On this issue, the analysis contained at pages 10-13 of 06-ORD-096, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. As long recognized by the Attorney General, a public agency is not obligated to compile a list or create a record to satisfy an Open Records request; however, a public agency is required to make available for inspection, during normal office hours, those records which might yield the information sought if the information is not protected by one or more of the exceptions codified at KRS 61.878 (1) (a)-(n). Id. at pp. 11-12.
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2 When making the "intrinsically situational" determination of whether a public agency has properly relied upon KRS 61.878(1)(a) in redacting information or withholding records, the analysis contained at pp. 5-9 of 06-ORD-006 (commonly known as the "balancing test"), a copy of which is attached hereto and incorporated by reference, is employed by this office.
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3 This decision resulted from a dispute involving access to accident reports and the controversy surrounding the 1994 amendments to KRS 189.635 and KRS 61.870, et seq. That controversy does not alter the point of law for which this office cites 97-ORD-8.
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4 Compare KRS 61.878(3), pursuant to which a public agency employee may inspect and copy " any record including preliminary and other supporting documentation that relates to him."
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