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 Russell County Board of Education's partial denial of Tonya Stargel's undated request for records relating to named personnel, as well as financial records relating to Russell Springs Elementary School and the Russell Springs Parent Teacher Organization, constituted a violation of the Open Records Act. The record on appeal is silent on the sources of funding for the Russell Springs PTO and therefore neither proves nor disproves that the PTO is a public agency for open records purposes. Clearly, however, the Board improperly characterized Ms. Stargel's requests for personnel records and payroll records as "too broad and nonspecific" and erroneously asserted, with regard to the latter, that "disclosure of such information would be an unwarranted and unjustified invasion of privacy." Assuming Ms. Stargel was afforded timely access to minutes of the Russell County Board of Education, that, in fact, Russell Springs Elementary School maintains no minutes, and that no records exist that are responsive to her request for written allegations of embezzlement or theft by debit or credit card by a named employee, or any other employee, of Russell Springs Elementary, we find no error in the Board's disposition of these requests.
In 03-ORD-012, this office determined that a request for a complete personnel file was sufficiently specific, and the responding agency was obligated to locate and review the file and disclose all nonexempt records to the requester. At page 7 of 03-ORD-012, this office observed:
[T]he Attorney General has consistently held that as a precondition to inspection, a requesting party must identify the records to be inspected with sufficient specificity to enable the agency's custodian of records to identify and retrieve the records. Thus, "where the records sought are of an identified, limited class, the requester satisfied this condition." 92-ORD-1261, p. 3. The records to which [the applicant] requested access consisted of a limited class, to wit personnel records, and were identified by name . . . . It cannot be persuasively argued that the [agency's] custodian could not identify and retrieve these records based on this description. This being the case, we find that it was incumbent on the [agency] to "separate the excepted and made the nonexcepted material available for examination." KRS 61.878(4). To suggest that discharge of this statutory duty was more difficult because the records sought were located in employees' personnel files, as opposed to the wide range of files and possible file locations implicated in [other requests], defies logic. We therefore find that a request for access to a personnel file requires no greater degree of specificity than any other open records requests, and that the agency must therefore "determine what is and is not subject to Open Records." Pursuant to KRS 61.878(4), the agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, site the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld.
Accord, 04-ORD-141; 05-ORD-073; 06-ORD-010. A copy of 03-ORD-012 is attached hereto and incorporated by reference.
In
Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008), the Kentucky Supreme Court affirmed this position, indirectly referenced 03-ORD-012, recognizing the sufficiency of an inmate request for the nonexempt portions of his inmate file, and declared that request "adequate for a reasonable person to ascertain [its] nature and scope . . . ." Id. at 662. Ultimately, the Court determined that "nothing in KRS 61.872(2) 1 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. '" Id. at 661. Extending the reasoning in these authorities to the appeal before us, we find that Ms. Stargel's request for the named employee's personnel file was "adequate for a reasonable person to ascertain [its] nature and scope," and that the Board violated the Open Records Act in denying her request as "broad and nonspecific." It is incumbent on the Board to review the named employee's personnel file and to release all nonexempt records to Ms. Stargel. If exempt records reside in the file, it is incumbent on the Board to identify those records in writing, to cite the exemptions authorizing nondisclosure of those records, and to briefly explain how the exemptions apply to the records withheld. The same holds true for payroll records at Russell Springs Elementary School for the past calendar year. The nature and scope of this request is clearly defined.
So, too, is the public's right of access to public employee payroll records notwithstanding the minimal intrusion on personal privacy that disclosure may occasion. In a line of open records opinions/decisions dating from the earliest days of the Act, this office recognized that "[a]mounts paid from public coffers are perhaps uniquely of public concern . . . . [T]he public is entitled to inspect records documenting exact amounts paid from public monies to include amounts paid for . . . salaries, etc. Specific sums paid in salary from public moneys to a teacher in the public schools fall within such purview." OAG 90-30, p. 2, citing OAG 76-717; see also, 10-ORD-219 and authorities cited therein. In evaluating the competing public and private interests implicated by disclosure of public employee payroll records, this office has consistently held that the strongly substantiated public in monitoring how public agencies allocate public funds to compensate public employees outweighs the employees' privacy interest. The Board's reliance on KRS 61.878(1)(a) to justify nondisclosure of these records was therefore misplaced.
The Russell County Board of Education argues that the Russell Springs Elementary School Parent Teacher Organization "is a separate entity, is not a public agency within KRS 61.870, and the school district does not have a legal duty or responsibility regarding the Russell Springs PTO." The Board offers no proof to support this argument. In 99-OMD-178, the Attorney General determined that the Bell County Middle School Parent Teacher Organization was not a public agency as defined in KRS 61.805(2) of the Open Meetings Act observing:
It is immediately apparent that the Parent-Teacher Organization cannot be characterized as a public agency as defined in KRS 61.805(2)(a), (b), (c), (d), (e), (f), or (h). The only definitional section under which it even arguably falls is KRS 61.805(2)(g), relating to:
In construing this provision, the Attorney General has opined that unless an entity is comprised of "a group of persons acting as a unit, to whom there has been officially delegated the responsibility to consider, investigate, take action on, or report on specific matters entrusted to it, "it is not a public agency within the scope of this definition. The written record before us demonstrates that the Parent-Teacher Organization was neither established nor created by the Bell County Middle School, or any other public agency defined in KRS 61.805(2)(a), (b), (c), (d), (e), (f), or (h). Nor does it appear that the Middle School, or any other recognized public agency, exercises control over it. It has no official charter, and no specific matters are entrusted to it. Although public employees, namely teachers and administrators, may participate in its activities, its officers are elected by its members, and its members determine its mission and mandate.
Thus, in 1999 this office held that a particular PTO was not a public agency for open meetings purposes. We have not had occasion to address the status of the Russell Springs Elementary PTO for open records purposes.
KRS 61.805(2), defining "public agency" under the Open Meetings Act, is not identical to KRS 61.870(1), defining "public agency" under the Open Records Act. Chief among the differences in the two definitions is the presence of the following section in the Open Records Act defining a "public agency" as:
Any body which derives at least twenty-five percent (25%) of its funds expended by it in the Commonwealth of Kentucky from state or local authority funds[.]
The Board asserts that the PTO is not subject to the Open Records Act but offers no proof that the PTO does not derive at least twenty-five percent of its funds expended by it in Kentucky from state or local authority funds. Our research into this question was inconclusive. The PTO's status is therefore indeterminate. Bearing in mind that the "burden of proof in sustaining [its denial of this portion of Ms. Stargel's request] rest[s] with the agency," KRS 61.880(2)(c), and that the Board denied this request based on the PTO's status as a non-public entity, we believe it is incumbent on the Board to present proof that neither it, Russell Springs Elementary School, nor any other state or local authority provides funding to the PTO that represents 25% or more of the funds expended by it in Kentucky.
We find no error in the Board's denial of Ms. Stargel's request for nonexistent records consisting of minutes of Russell Springs Elementary School meetings and records containing allegations of embezzlement or theft by debit or credit card of a named employee. The Board cannot produce that which does not exist, and Kentucky's courts have established "that before a complaining party [Ms. Stargel] is entitled to such a hearing [to disprove the agency's denial of the existence of the requested records] he or she must make a prima facie showing that such records do exist."
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005). We refer the parties to 06-ORD-223 for an analysis of this question. A copy of that decision is attached hereto and incorporated by reference. Ms. Stargel makes no showing, through, e.g., newspaper articles, letter of resignation or termination, or other documentation, that the named employee engaged in misconduct. Absence such a showing, we can proceed no further on this issue.
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.
Tonya StargelKenny PickettJeffrey H. Hoover
Footnotes
Footnotes
1 Compare KRS 61.872(3).