Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville-Jefferson County Public Defender Corporation violated the Open Records Act in the disposition of Commonwealth's Attorney R. David Stengel's request for "[a] list of all current Louisville Metro Public Defender employees, including the Executive Director, all staff attorneys, and all support personnel, and their salaries. " 1 In the absence of a published Kentucky Court of Appeals or Kentucky Supreme Court opinion repudiating some thirty-one years of open records decisions issued by this office and recognizing the public's right of access to public employee names and their corresponding salaries, we find that the Corporation violated the Open Records Act in denying this portion of Mr. Stengel's request notwithstanding the existence of a November 14, 2002, order of the Jefferson Circuit Court, Division 8, reversing 00-ORD-6. 2
In an undated response, Louisville Metro Public Defender Daniel T. Goyette notified Mr. Stengel that the Corporation could not comply with his request. He explained that the open records decision upon which Mr. Stengel relied, 00-ORD-6, "was timely appealed and ultimately reversed . . . [by] order of the Jefferson Circuit Court" and "does not have the force and effect of law." Continuing, Mr. Goyette observed:
[T]he Court's ruling explicitly upheld the right of privacy asserted by [Corporation] employees . . . insofar as disclosure of their individual salaries is concerned. Having said that, I believe I can provide you with the information you are seeking, without running afoul of the Court's Order if I do so according to position and salary range. 3
Mr. Goyette thereafter advised Mr. Stengel that the Corporation's "entry level attorney salary is $ 37,522.08, the same as other state agencies, and [the Corporation's] salary scale generally tracks the established state pay grades taking into account years of service, responsibilities, and performance." In addition, he agreed to provide Mr. Stengel with a breakdown of "salary ranges by position in light of these factors." 4
On appeal, Mr. Stengel asserts his right to the requested information "in light of the fact that 100% of Mr. Goyette's operation at the Public Defender's Office is funded by taxpayer monies," and seeks "any other available sanctions flowing from" the Corporation's disposition of his request in addition to an adjudication of the legal issues presented. 5
In supplemental correspondence directed to this office following commencement of Mr. Stengel's appeal, the Corporation amplified upon its position. On behalf of the Corporation, Mr. Goyette asserted that Mr. Stengel's request was not denied but that he was instead informed that the Corporation could not comply with his request, as submitted, because of the terms of the Jefferson Circuit Court's order. Mr. Goyette attached a copy of that order, the relevant portion of which states:
IT IS ORDERED AND ADJUDGED that Plaintiff/Appellant's [Louisville-Jefferson County Public Defender Corporation, et al.,] Motion for Summary Judgment be, and hereby is, GRANTED, and, therefore, the Attorney General's Opinion 00-ORD-6 does not have the force and effect of law and the Opinion shall not be enforceable against the Plaintiff/Appellant . . . at this time or any time in the future.
Acknowledging the Corporation's error in failing to provide Mr. Stengel with information relating to support staff, Mr. Goyette submitted this information with his supplemental response "to remedy the oversight." 6 It was his position that the Corporation had substantially, and in good faith, complied with Mr. Stengel's request, and that in weighing the Jefferson Circuit Court's order against the public's right to know, his office struck a reasonable balance by releasing "the source, amount, and use of public funds, including specific salaries for each and every position on the staff. " In support, he relied on Zink v. Commonwealth, 902 S.W.2d 825 (Ky. App. 1994), concluding that "[n]o public purpose has been cited that would be advanced by linking names to salaries. " Bearing in mind that it is not incumbent on Mr. Stengel to articulate such a purpose, and that, pursuant to KRS 61.880(2)(c), the Corporation is assigned the burden of proof, we do not agree with this analysis. We conclude that the Corporation violated the Open Records Act in denying Mr. Stengel's request for employee names and their corresponding salaries, the Jefferson Circuit Court's order in Louisville-Jefferson County Public Defender Corporation, et al. v. C. David Emerson, above, notwithstanding.
The statutory exemption upon which the Corporation implicitly relies, and upon which the circuit court's analysis turned in Louisville-Jefferson County Public Defender Corporation, above, KRS 61.878(1)(a), permits public agencies 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 an early open records decision, the Kentucky Court of Appeals developed a standard by which to judge the propriety of an agency's invocation of the personal privacy exemption. Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, 625 S.W.2d 109 (Ky. App. 1981). At page 111 of that decision, the court observed:
[W]e should point out that we do not subscribe to the tilting toward disclosure doctrine [adopted by the federal courts] but rather apply the test of balancing the interests of the parties as well as those of the public measured by the standard of a reasonable man.
The court thus recognized that "we must treat these actions on a case by case basis." Id.
The Kentucky Supreme Court revisited this issue in 1992, refining the standard set forth in Board of Education and departing, at least in part, from that decision by establishing that the Open Records Act does, in fact, "exhibit[] a general bias favoring disclosure. " Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). The court began its analysis with the proposition that "[t]he public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory function." Id. Continuing, the court observed:
In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
Id. The court also recognized that the existence of the privacy exemption "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion of unwarranted public scrutiny. " Id.
Drawing on these fundamental principles, the court articulated the following standard for determining if a record may properly be excluded from public inspection pursuant to KRS 61.878(1)(a):
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
Board of Examiners at 327, 328.
In Zink v. Commonwealth of Kentucky, above, the Court of Appeals was again presented with a challenge to an agency's invocation of the personal privacy exemption. Echoing the rule announced in Board of Examiners, the court elaborated on its "mode of decision":
[O]ur analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination entails a "comparative weighing of antagonistic interests" in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [Board of Examiners] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. [Citation omitted.]
Zink at 828. Applying this standard, the court concluded that the Commonwealth of Kentucky, Department of Workers Claims, properly relied on KRS 61.878(1)(a) in denying the requester access to injury report forms filed by private citizens with the Department which contained information including marital status, number of dependents, wage rate, social security number, home address, and telephone number. The court emphasized that the only relevant public interest to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act which is "to further the citizens' right to know what their government is doing and . . . subject agency action to public scrutiny. " Zink at 829. Because no public interest would be served by disclosure of information on the injury report forms in which the private citizens who applies for workers compensation benefits had a cognizable privacy interest, that information could properly be withheld.
With these principles in mind, we turn to the question presented in this appeal: Whether disclosure of public employee names, and their corresponding salaries, constitutes a clearly unwarranted invasion of personal privacy. While Kentucky's courts, including the Jefferson Circuit Court -- Division 8, have recognized that salaries or wage rates of private citizens "are generally accepted by society as details in which an individual has at least some expectation of privacy, " Zink at 828, the courts, with the exception of the Jefferson Circuit Court -- Division 8, have not had occasion to address the issue of access to public employee salaries in a published opinion. This office has long recognized that the public interest in ascertaining the salaries of public employees is superior to the employees' privacy interest in those salaries. OAG 76-717. The Attorney General's decisions are premised on the notion that "[t]hese are matters in which the public has an interest since state employees are carrying on the public's business at public expense." OAG 76-717, p. 1. Stated alternatively, "[t]he public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items or for salaries. " OAG 90-30, p. 3. Such records, in fact, "are perhaps uniquely of public concern." Id. The public's interest in disclosure of these records can be inferred from this line of decisions and the privacy interests implicated, although not de minimus, must yield to that interest.
Mr. Goyette emphasizes the existence of a circuit court opinion rejecting this position in an earlier open records dispute involving the same records in the Corporation's custody. However, he does not cite, and we are unable to locate, any authority that directs this office to treat the circuit court's opinion as legal precedent. Unless or until an appellate court issues a published opinion that is clearly contrary to our own, we will continue to adhere to the position reflected in the line of decisions set forth above. To hold otherwise would result in conflicting open records decisions issuing from this office the outcome of which would be dependent upon the circuit in which a similar dispute arose or might arise, and, within the same circuit, where co-equal divisions of the court reach conflicting conclusions. 7 To hold thus promotes certainty in the application of established legal principle, in this case, the principle that KRS 61.878(1)(a) does not authorize nondisclosure of public employee names and corresponding salaries. Accord, 06-ORD-230. Like any other public agency, the Corporation is entitled to appeal the Attorney General's open records decision in the manner described below.
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 Mr. Stengel also requested a copy of the Corporation's current 2006-2007 fiscal budget. The Corporation honored this portion of his request, and included additional information "about funding amounts for the operation of [the] office in FY 2007, and other sources of income and revenue[.]"
2 Louisville-Jefferson County Public Defender Corporation, et al. v. C. David Emerson, No. 00-CI-01159 (Jefferson Circuit Court -- Division 8, November 14, 2002).
3 Mr. Goyette expressed the belief that "the Attorney General's Office, the DPA, and other state agencies normally respond to similar requests in that fashion." We have confirmed that the Attorney General regularly discloses employee names and corresponding salaries in response to open records requests for same. Although we are unable to confirm that "other state agencies, " including DPA, handle similar open records requests in this fashion, we note that this approach does not find support in existing authority where a particularized request for employee names and corresponding salaries is made. Moreover, we note that names and corresponding salaries for the 48,000 individuals employed by Kentucky state government can be accessed at http://www.heraldleaderonline.com/salary 2006. The source for this information is identified as the Kentucky Personnel Cabinet.
4 In response to Mr. Stengel's protestations relative to the adequacy of the information provided, the Corporation subsequently provided him with a copy of a list containing attorney titles and corresponding salaries and a separate list identifying attorneys by name and telephone extension. The Corporation continued to rely on the circuit court order reversing 00-ORD-6 in refusing to correlate this information.
5 With reference to Mr. Stengel's request for "available sanctions," we direct his attention to KRS 61.880(2)(a) which limits the Attorney General's role in an open records appeal to issuing "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." Only the courts can impose the sanctions provided for at KRS 61.882(5) and KRS 61.991(2)(a) and (b). See, e.g., 00-ORD-150.
6 Both Mr. Stengel and Mr. Goyette devote considerable attention in their correspondence with this office to the issue of compliance with KRS 61.880(1) and timely agency response to an open records request. We will not lengthen this decision with a recitation of the conflicting facts presented on appeal but remind the parties that "the procedural requirements of the Open Records Act are not mere formalities, but are a part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5. The failure to strictly comply with the requirements set forth at KRS 61.880(1) constitutes a violation of the Open Records Act.
7 Should this issue again reach the Jefferson Circuit Court, it is by no means clear that the matter will be heard in the Eighth Division or, indeed, that the outcome there is predetermined.