Request By:
Kevin Brumley
Dean Watts
John Kelley, Jr.
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Nelson County Judge/Executive violated the Kentucky Open Records Act in denying Kevin Brumley's written request for a copy of Nelson County Deputy Sheriff Ernie T. Smith's "vacation leave" and "sick leave" for the months of May-July 2009, his doctor's excuse(s) per the "Nelson County Policy Manual" if he "took sick leave over 3 days in succession" during May-July 2009, his "time cards" and work schedule for May-July and August 1-15, 2009, and "any official documents generated" by him between July 1-31, 2009, "that is a duty [sic] and[/]or requirement of his employment by the county of Nelson as a deputy sheriff." 1 Because public employee time sheets/ time cards "reflecting total hours an employee worked, start and stop times, hours off, reasons for absences, and compensatory hours earned" do not "touch upon the personal features of private lives," this office has long recognized that such records cannot properly be withheld in their entirety on the basis of KRS 61.878(1)(a); the agency's reliance on this exception was misplaced. 96-ORD-239, pp. 2-3, quoting Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994). If any responsive doctor's excuses(s) exist and contain protected medical information, the Judge/Executive may not withhold the document(s) entirely, but may instead redact such information per KRS 61.878(4). In ultimately referring Mr. Brumley to the Sheriff's Department for Deputy Smith's work schedule and other documentation which is not in his custody or possession, the Judge/Executive substantially complied with KRS 61.872(4).
By letter dated August 31, 2009, Judge/Executive Dean Watts responded to Mr. Brumley's August 25, 2009, request. 2 Quoting the language of KRS 61.878(1)(a), 3 Judge Watts asserted that "records concerning Deputy Smith's vacation would fall under this subsection as an invasion of his privacy. " In his view, "any vacation time of Deputy Smith would not and does not concern the performance of Deputy Smith's public employment. " 4 With the exception of Deputy Smith's work schedule and the "official documents generated by" him, which Judge Watt's office "is not the custodian of," Judge Watts again relied on the foregoing analysis in support of his denial.
By letter dated September 8, 2009, Mr. Brumley initiated this appeal, relying primarily on 96-ORD-29 and 98-ORD-131 to refute Judge Watts' position regarding time sheets, and the information contained therein such as vacation and sick leave, as well as time cards. In addressing Judge Watts' assertion that he is not the custodian of Deputy Smith's work schedule and other documentation, Mr. Brumley argues that "the elected Sheriff, for monies to subsidize the Nelson County [S]heriff['s] [D]epartment, has contractually allowed [Judge Watts] to become the unofficial sheriff over what was once personnel of the Nelson County Police Department that was disbanded and [whose] officers merged into the Nelson County Sheriff's Department in 2000." According to Mr. Brumley, his complaint is "basically an estoppel action" in this regard since Judge Watts previously established a policy of having all requests go through his office by memorandum dated February 17, 2005, a copy of which is attached to his appeal. 5 Mr. Brumley also referred to Judge Watts' response in 08-ORD-167 as further support for his estoppel argument. 6 In closing, Mr. Brumley challenged Judge Watts' failure to comply with KRS 61.872(4) in denying possession of those records.
Upon receiving notification of Mr. Brumley's appeal from this office, Nelson County Attorney John S. Kelley, Jr. responded on behalf of Judge Watts, essentially reiterating his earlier arguments relative to vacation and sick leave as well as time cards. Disagreeing with Mr. Brumley's application of 96-ORD-239, Mr. Kelley argued that "[a]ny vacation time taken or received by Deputy Smith is certainly unrelated to the performance of his job because he would not be performing his job while on vacation. " In his view, any vacation that Deputy Smith may have taken is "personal to him in that it does not affect his job performance because he is not performing a job while on vacation and it is a private time that should remain between himself and his family." Likewise, Mr. Kelley believes that "[s]ick days are personal to each person and should be treated as personal to that employee regardless of who the employer may be." He generally referenced HIPAA (Health Insurance Portability and Accountability Act) in support of this position. 7 With regard to any doctor's excuse(s) that may exist, Mr. Kelley asserted that "[c]orrespondence concerning health information communicated to a health care provider is covered under the HIPAA regulations. Deputy Smith consented for this communication to be given to his superior by presenting the note however [sic] he did not consent to it being released to any person who might request it."
With regard to any responsive time cards, Mr. Kelley explained that Judge Watts again "relies upon the premises as laid out above that these time cards contain information that is personal to the Deputy." Mr. Kelley agrees "that if the time cards only showed the time Deputy Smith was on duty that they would be subject to an open records request." However, any "vacation or sick time would be also seen on these time cards and this information is personal and should [not] be divulged to the public." In addition, Mr. Kelley again generally references the "HIPAA regulations" which demonstrate "a public policy movement towards protecting a person's health information, including when he was not well enough to attend work."
In denying Mr. Brumley's request for Deputy Smith's work schedule and "official documents" that he may have generated in the course of performing his duties, Mr. Kelley advised that Judge Watts does not possess these documents. Rather, they are "possessed and used by the Sheriff's Department and the Nelson County Circuit Clerk's office." According to Mr. Kelley, Judge Watts "cannot be expected to supply or retrieve documents that he does not possess or is not the custodian of, as has been the holding in numerous decisions concerning open records requests." Mr. Kelley further explains that the documentation to which Mr. Brumley referred in making his estoppel argument "was sent out to department heads and personnel that work directly under the supervision of Judge Watts. The Nelson County Sheriff's Department does not work under the supervision of Judge Watts. The Nelson County Sheriff is a separately elected official that takes and keeps custody over some of the records requested." For example, Judge Watts "merely handles payroll duties for the Sheriff's Department, his office does not handle any citations, scheduling or other matters for the Sheriff's Department." Because governing precedents, including 96-ORD-239, and 98-ORD-131, expressly refute Judge Watts' position, this office finds that his reliance on KRS 61.878(1)(a) was misplaced except in reference to medical information possibly contained in any responsive doctor's excuse(s). In belatedly providing Mr. Brumley with the name of the custodial agency for those records not in his possession, Judge Watts partially complied with KRS 61.872(4).
In 96-ORD-239 (copy attached), upon which both parties relied, the Attorney General reasoned as follows in addressing the question of whether public employee time sheets/ time cards and the information contained therein may be properly withheld on the basis of KRS 61.878(1)(a):
An analysis of the propriety of an agency's invocation of the privacy exemption begins with a determination of whether the information contained in the records withheld is of a personal nature. Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co ., [Ky., 826 S.W.2d 324 (1992)]. We do not believe that information relating to time spent in public service meets this threshold requirement. See, e.g., OAG 84-161, p. 2, "The time a public employee spends in performance of public service which is compensated by public funds is directly related to public employment performance. As such, no personal privacy is involved and no protection against an unwarranted invasion thereof is required"; OAG 86-55, p. 3, "The privacy exemption applies only to matters unrelated to the performance of a public job"; OAG 91-176, p. 3, 4, "Attendance sheets verify that . . . employees were present and on the job during any particular time period, and are not protected by the privacy exemption." It is safe to say that nothing in those records "touches upon the personal features of private lives." Zink v Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994). 8 Public employees do not, therefore, have a reasonable expectation of privacy in their weekly, or monthly, time sheets .
Assuming, for the sake of argument, that the time sheets do contain information of a personal nature, we believe that a public employee's privacy interest in their nondisclosure is outweighed by the public's interest in determining whether "public servants are indeed serving the public." Zink at 828, 829, citing Board of Examiners at 328. As this office observed in OAG 84-161, p. 2:
In our view, the public's right to know is superior to the employees' privacy interest, real or imagined .
Id., pp. 2-3 (emphasis added).
In our view, 96-ORD-239 is controlling on the facts presented; this appeal presents no basis for departing from the reasoning above. Simply put, Judge Watts'/Mr. Kelley's interpretation of 96-ORD-239 is unpersuasive in light of the italicized language. Deputy Smith's vacation and sick leave, and time cards must be disclosed; the public's right to know is superior to his minimal privacy interest as 96-ORD-239 clearly establishes. Further support for this position is found in 98-ORD-131, a copy of which is attached hereto and incorporated by reference. Because the record in that appeal was "devoid of evidence" that the effectiveness of the detective whose "scheduled work hours" were requested "would be undermined, or that he would be imperiled in the discharge of his particular duties, by disclosure of his work schedule" on the specific dates provided, this office declined to affirm the Covington Police Department's denial of the request. 9 Id., p. 5. There is no suggestion that disclosure of Deputy Smith's vacation and sick leave, time cards, or work schedule (assuming that Judge Watts had custody) would even potentially undermine his effectiveness or place him in peril of any kind, nor would this argument be credible.
Although the public is not entitled to know the specifics regarding Deputy Smith's vacation (s) such as destination, cost, etc. or the medical condition(s) that resulted in his use of sick leave, nor did Mr. Brumley request such details, a time sheet/ time card generally does not contain that kind of detailed information. If any protected information does appear in these records, Judge Watts is required to "separate the excepted and make the nonexcepted material available for examination" per KRS 61.878(4); he may not withhold the records entirely. "Because both a work schedule and a time sheet 'directly relate [] to public employment performance[,]' OAG 86-55, p. 3, they are subject to public inspection. " 98-ORD-131, p. 4. See 04-ORD-251, pp. 4-5 (Rockcastle County 911 Board erred in characterizing employee time sheets as non-public records and must produce them for inspection but may redact "purely personal information, such as home address, Social Security numbers, or references to medical conditions, pursuant to KRS 61.878(1)(a)"). In light of this determination, the question becomes whether Judge Watts erred in withholding any responsive doctor's excuse(s) on the bases of KRS 61.878(1)(a) and HIPAA.
In 08-ORD-166, this office "addressed the issue of the intersection between HIPAA and the state's open records law," and concluded that public agencies that are "covered entities" must disclose "protected health information" (PHI), under the "required by law" exception to the HIPAA Privacy Rule, to the extent that disclosure is required by the Kentucky Open Records Act. Adopting the position of the Ohio Supreme Court and the Texas Court of Appeals, the Attorney General recognized:
Kentucky's Open Records Law, which in this context parallels Ohio's Public Records Law and Texas' Public Information Act, and is determinative of the issue of access under the "required by law" exception to HIPAA's Privacy Rule, declares that "[a]ll public records shall be open for inspection by any person," 10 and "exhibits a general bias favoring disclosure. " 11 In light of the legislative recognition "that free and open examination of public records is in the public interest[,] . . . the exceptions provided for by KRS 61.878 or otherwise provided by law [must] be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others."
08-ORD-166, p. 6, 7. A copy of 08-ORD-166 is attached hereto and incorporated by reference. In the present context, KRS 61.878(1)(a) is the "controlling law."
It is well-established that disclosure of medical records or the information contained therein generally constitutes a "clearly unwarranted invasion of personal privacy, " and such records, or portions thereof may therefore be withheld on the basis of this exception. 05-ORD-239, pp. 2-3. In 03-ORD-023, this office recognized as much in observing:
Few records are accorded greater protection than patient medical records. Indeed, in a different factual context the Kentucky Supreme Court has determined that information elicited within the relationship of a health care provider and his or her client is "both personal and private," that disclosure of records containing such information "would constitute a serious invasion of personal privacy, " and that with regard to such records "there is a . . . public interest in personal privacy [that is] strongly substantiated." Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times, Ky., 826 S.W.2d 324, 328 (1992). State and federal legislation support this position. . . .
Id., p. 6. Based upon the foregoing, this office finds that Judge Watts may withhold those responsive documents, or portions thereof which contain Deputy Smith's medical information per KRS 61.878(1)(a), if any, but must disclose the remaining documents, or portions thereof in accordance with KRS 61.878(4). 12
The final question presented is whether Judge Watts erred in declining to provide Mr. Brumley with Deputy Smith's work schedule and the documentation that he generated in discharging his duties from July 1-31, 2009, including, but not limited to "any daily, weekly, or end of the month activity reports, any inciden[t] reports, and . . . citations issued." Pursuant to KRS 61.872(4), "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " Inasmuch as Judge Watts merely advised Mr. Brumley that his office "is not the custodian" of these records without further comment or explanation, he initially failed to comply with the mandatory terms of this provision. On appeal, Mr. Kelley substantially complied on behalf of Judge Watts in advising that any responsive documents "are possessed and used by the Sheriff's Department and the Nelson Circuit Court Clerk's office"; however, Judge Watts was required to provide Mr. Brumley with contact information for the records custodian at each agency in order to fully discharge his duties.
That being said, a public agency cannot afford a requester access to nonexistent records or those which it does not possess. 08-ORD-134, p. 4; 02-ORD-118; 01-ORD-36; 91-ORD-17; OAG 87-54. A public agency such as Judge Watts "obviously cannot produce for inspection or copying that which it does not have." 02-ORD-118, p. 3. To clarify, the right of inspection attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2) (emphasis added); 02-ORD-120, p. 10; 04-ORD-205. It stands to reason that the Sheriff's Department does not work under the supervision of Judge Watts nor would his office maintain records documenting Deputy Smith's work schedule, with the exception of payroll records, including time sheets/ time cards, or those which he generates in the course of performing his job. Judge Watts' denial is affirmed in this regard.
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 Although Mr. Brumley also requested "a copy of all gas receipts, charged to any credit card issued to any entity of Nelson County government by Nelson County Deputy Sheriff Ernest T. Smith, during the months of May, June & July 2009," the Judge/Executive did not deny this part of his request; accordingly, consideration of any issues related to same is unwarranted.
2 In failing to issue a written response within three business days, the Judge/Executive violated KRS 61.880(1); however, in responding to Mr. Brumley's appeal Nelson County Attorney John S. Kelley, Jr. advised that Judge Watts informed Mr. Brumley by telephone on Friday, August 28, that "he would need a little more time in complying with the request." On the following Monday, the fourth business day after the request was received, Judge Watts provided Mr. Brumley with a written response and some records. Although the Judge realized that a written response was "preferred," he apparently felt that a telephone call "was the proper route as it allowed for easier access and instant communication." Because the delay was minimal in this instance, the Judge has acknowledged this procedural error, and the law is well-established regarding application of KRS 61.880(1), this office will not belabor this issue beyond reminding the Judge that compliance is mandatory rather than a matter of preference, and the only exception is KRS 61.872(5), which he did not invoke or comply with.
3 Judge Watts relied upon OAG 83-329 for the proposition that personnel records are protected under KRS 61.878(1)(a); however, only certain records in a personnel file, or parts thereof may be withheld on the basis of KRS 61.878(1)(a). See 97-ORD-66; 03-ORD-012.
4 In so arguing, Judge Watts relied upon OAG 78-133, which recognized that KRS 61.878(1)(a) "applies only to matters entirely unrelated to the performance of public employment [,]"; however, leave time used is related, and therefore cannot be withheld as explained later.
5 Judge Watts' memo was directed to "All Supervisors, Personnel. "
6 In so arguing, Mr. Brumley relied upon Judge Watts' response to his previous appeal, in which Judge Watts advised, in relevant part, that he is "the official custodian of all county records." 08-ORD-167, p. 2. Although Mr. Brumley's confusion is understandable in light of Judge Watts' earlier declaration, Mr. Kelley adequately explained the seeming inconsistency in his response to Mr. Brumley's appeal.
7 Noticeably absent is any reference to the specific provisions of HIPAA upon which the Judge relied or KRS 61.878(1)(k), which protects "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation."
8 In Zink , the Kentucky Court of Appeals recognized that information such as "marital status, number of dependents, wage rate, social security number, home address and telephone number are generally accepted by society as details in which an individual has at least some expectation of privacy. " Id . at 828. This office has consistently recognized in applying Zink that such identifying information, as well as medical information and marital status, does not relate to the performance of public employment, and that disclosure would thus constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a). Judge Watts may redact such information if any is contained in the requested time sheets/ time cards.
9 In so doing, this office "left for another day the question of whether the work schedule of police detectives engaged in particularly sensitive work may properly be withheld under KRS 61.872(6)," noting that if "a detective is engaged in undercover activities or similar duties, and disclosure of his work schedule would place him at a substantial risk of personal harm, invocation of KRS 61.872(6)" would be warranted. 98-ORD-131, p. 5.
10 KRS 61.872(1).
11 Kentucky Board of Examiners of Psychologists, supra, at 327.
12 It is unclear from the record whether any doctor's excuse(s) exist and, if such records do exist, whether any information regarding the specific illness or condition that justified his use of sick leave is contained therein as opposed to merely unprotected information such as the duration of his absence, etc.