10-ORD-231

10-ORD-231

December 22, 2010

In re:        Leo Weekly/Louisville Metro Government

Summary:        Louisville Metro Government improperly relied on KRS 341.190(3) in denying request for unemployment compensation records relating to former director of Louisville Metro Animal Services.

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 Louisville Metro Government improperly relied on KRS 341.190(3) in denying Leo Weekly staff writer Jonathan Meador’s August 16, 2010, request to inspect and copy “any documentation on behalf of Louisville Metro Human Resources regarding approval of unemployment compensation to Gilles Meloche, former director of Louisville Metro Animal Services.”  Although the Education and Workforce Development Cabinet is statutorily foreclosed from releasing the requested documentation, Metro is, on these facts, an employing unit with which the Cabinet apparently provided the documentation under the exception to nondisclosure found at KRS 341.190(3)(b).¹  That exception places no restrictions on subsequent disclosure by the claimant or the employing unit with which the Cabinet shares the records.  Metro thus stands in the same shoes as all other employing units insofar as it is not bound by the confidentiality provision found at KRS 341.190(3). Compare KRS 341.190(3)(a)² (requiring “public employees” with whom the Cabinet shares confidential information ”in the performance of [the employees’] duties” to enter into “a written, enforceable, and terminable agreement with the cabinet” to assure the confidentiality of the information).³  Because KRS 341.190(3) is inapplicable to it, Metro’s reliance on that provision was, as noted, misplaced. Because Gilles Meloche is a former public agency employee whose work records, including wages paid, the circumstances relating to his resignation, and time records, were and are not protected by KRS 61.878(1)(a), neither this nor any other exception to the Open Records Act authorizes Metro to withhold the requested records.

        In its original response to Mr. Meador’s request, Metro invoked “the broadly worded confidentiality provisions related to unemployment insurance records contained in KRS 341.190(3),” but acknowledged that it is “unclear whether the mandate of confidentiality applies only to the state departments.”  In light of the penalty provision codified at KRS 341.990(11), imposing sanctions on “any person” who violates KRS 341.190(3), Metro elected to “err[ ] on the side of confidentiality . . . .”  In supplemental correspondence directed to this office, Metro reiterated that KRS 341.190(3) “would appear to apply to documents provided by both Metro and Dr. Meloche to the Cabinet and documents received by Metro from the Cabinet,” but again recognized that the provision may only apply to records “in the possession of the Cabinet.”  Continuing, Metro advised:

In an attempt to seek clarification, this office contacted the Department of Unemployment Insurance. We asked their position on the confidentiality of documents in Metro’s possession that had been forwarded to Metro by the department. The department representative stated that they had not previously addressed the issue but he was unwilling to state that their office would have no problem with the release of the documents.

Given the Cabinet’s uncertainty, Metro again elected to err on the side of confidentiality.

        Respectfully, we find that the language of KRS 341.190(3), coupled with the language of the exceptions to the rule of confidentiality, does not support Metro’s position. KRS 341.190(3) provides:

Information obtained from an employing unit or individual and other records made by the cabinet in the administration of this chapter are confidential and shall not be published or be open for public inspection, except as provided below[.]

The open records decisions construing this statute, 05-ORD-186 and 10-ORD-158, provide little useful guidance insofar as they involve requests to the Education and Workforce Development Cabinet for records of the Education and Workforce Development Cabinet. These records fall squarely within the parameters of KRS 341.190(3). The records in dispute in this appeal include records generated by Metro and transmitted to the Cabinet as well as records generated by the Cabinet in the administration of Dr. Meloche’s claim. More importantly, the request was directed to Louisville Metro Government, a public agency governed by the Open Records Act that the Cabinet is unwilling to characterize as being bound by the confidentiality provision.

        The term “employing unit” is elsewhere defined in Chapter 341 as, inter alia, “this state or any department, division, administrative unit, political subdivision or municipality thereof . . . .”  KRS 341.060(1). Metro is a political subdivision of the state that employed Dr. Meloche until he resigned from Metro Animal Services and is therefore an “employing unit.”  Although Metro is, coincidentally, comprised of “public employees” within the meaning of KRS 341.190(3)(a), Metro presents no proof that the Cabinet made the records available to Metro employees in the performance of their duties, or, as noted, that the Cabinet and Metro entered into a written, enforceable confidentiality agreement. In the absence of proof that the Cabinet provided the records to facilitate the rendition of Metro employees’ duties or of the existence of a confidentiality agreement, we find that KRS 341.190(3)(a) authorized neither the Cabinet’s provision of the records to Metro nor Metro’s decision to withhold them. Clearly, the confidentiality provision would have extended to Metro if the Cabinet had made the records available to Metro employees in the performance of their duties and a written confidentiality agreement had been executed.

        The second exception to KRS 341.190(3), KRS 341.190(3)(b),⁴ authorizes the Cabinet to provide “information and records maintained . . . in the administration of [the] claim” to the claimant, his employing unit, or his legal representative but places no restrictions on subsequent disclosure. Although Metro does not explain how or why the Cabinet provided the disputed records to it, this exception to the rule of confidentiality authorizes provision of the records to the “employing unit,” Metro, by the Cabinet without condition. Because KRS 341.190(3)(b) does not purport to “prohibit[ ] or restrict[ ] or . . . ma[k]e confidential” Cabinet records in the possession of the claimant, the employing unit, or legal representatives, it does not operate as an impediment to Metro’s disclosure of the records, and KRS 61.878(1)(l), through which it would otherwise have been incorporated into the Open Records Act, is inapposite. The disputed records having been disclosed to Metro as the employing unit by the Cabinet, Metro is not foreclosed from subsequent disclosure.

        Metro invokes no other exception to public inspection. Although KRS 61.878(1)(a) might have been invoked to protect wage and employment records of private employees,⁵ Dr. Meloche was a public employee. Wage and employment records relating to him did not enjoy protection under this or any other exception to the Open Records Act. See, e.g., 97-ORD-65, p. 2, citing OAG 90-30 (recognizing that “amounts paid from public coffers are perhaps uniquely of public concern . . .[, and] the public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items or for salaries . . . “).  Dr. Meloche’s salary was paid from public funds, and the public’s interest in monitoring the expenditure of those funds, as well as his job performance, outweighs his privacy interest in those records. See, 02-ORD-231 (citing Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1994) for the proposition that “the public’s interest in insuring that ‘public servants are indeed serving the public’ does not wane with the passage of time” and Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001) contrasting the significant privacy interest of “an innocent, private citizen” in records reflecting performance of work related duties with a public employee’s insignificant privacy interest in the same records). Accordingly, we find that Metro improperly denied Mr. Meador’s under KRS 61.878(1)(l) as well as the other exceptions to the Open Records Act.

        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.

                                                Jack Conway

                                                Attorney General

                                                Amye L. Bensenhaver

                                                Assistant Attorney General

#351

Distributed to:

Jonathan Meador

Terri A. Geraghty