Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the City of Salyersville subverted the intent of the Open Records Act, 1 short of denial of inspection, in responding to Jeff Ross's August 12, 2010, request for "all payroll records (including and not limited to) time cards, payroll worksheets, etc. for all city employees for the month of July 2010, including the Mayor." On August 17, 2010, the city notified Mr. Ross that his request was "not specific enough" and therefore could not be honored. The city asked that he specify "which record/records that you wish to request." Because his requests were "adequate for a reasonable person to ascertain [their] nature and scope," Mr. Ross satisfied KRS 61.872(2) as construed by the
Kentucky Supreme Court in Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008), and the city should not have demanded greater specificity.
The city's supplemental response, filed after Mr. Ross initiated his appeal, criticizes his "blanket request" for records, asserting that the request lacks "reasonable particularity. " In Chestnut, above, the Court focused on the absence of a "particularity" requirement in KRS 61.872(2). That statute provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
The Court examined KRS 61.872(2), observing:
[N]othing in KRS 61.872(2) contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected. " We must interpret statutes as written, without adding any language to the statute, even in open records cases. And it is obvious that the General Assembly chose only to require the record to be described. It did not add any modifiers like particularly described.
Chestnut at 661. Because the request in Chestnut, above, "was adequate for a reasonable person to ascertain [its] nature and scope," 2 the Court held that Chestnut satisfied KRS 61.872(2), that he was "required to do nothing more and, indeed, likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents . . .that he had never seen." Id.
The same can be said of Mr. Ross and his request for the July, 2010, payroll records for all city employees, including the mayor. The Court's analysis in Chestnut is therefore controlling. Mr. Ross "described the records he wanted to see," namely, city employee payroll records for the month of July. Id. His was "a brief and simple request for the government to make full disclosure or openly assert its reason for nondisclosure." Chestnut at 662, citing
Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp. 778, 792 (D.R. 1 1978) reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979). The City of Salyersville's failure to make full disclosure of its July payroll records in response to this simple request constituted a subversion of the intent of the Open Records Act as described in KRS 61.880(4).
The city expresses doubt about the existence of time cards and payroll worksheets. If no such records exist, the city may fully discharge its statutory duty by so notifying Mr. Ross. If, on the other hand, the city maintains time-keeping records that are not designated "time cards" but serve the same purpose, it is obligated to provide Mr. Ross with copies of these records after making appropriate redactions of purely personal information. See, e.g., 96-ORD-239. Finally, if the city maintains worksheets that are used in calculating its final payroll, those records, too, must be provided to Mr. Ross for inspection. There is no legal basis in the Open Records Act for denying Mr. Ross's request for time cards and payroll worksheets unless those records, or records that serve the same purpose but have a different name, do not exist.
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.
Jeff RossMs. Karen HowardJeff Lovely
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 Bobby Chestnut was an inmate who requested "[a]n entire copy of [his] inmate file excluding any documents that would be considered confidential [sic]." Chestnut at 658.