Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Kentucky Retirement Systems violated the Kentucky Open Records Act in denying Nick Storm's November 26, 2012, request for "access to or copies of" a "list of all individuals who received benefits from Kentucky Retirement System funds (KERS non-hazardous, KERS hazardous, Kentucky Teachers['] Retirement System, CERS hazardous, CERS non-hazardous, judicial and legislative funds) that totaled $ 100,000 or more in the calendar year 2011." By letter dated December 7, 2012, Interim General Counsel Jennifer A. Jones advised Mr. Storm that his request was being denied on the basis of KRS 61.661. Also citing KRS 61.878(1)(l), Ms. Jones asserted that "[Retirement] is not required to produce 'public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.' . . . [Retirement] is statutorily prohibited from releasing any information regarding a member's account." Further, Ms. Jones explained, "[Retirement] does not administer the Kentucky Teacher[s'] Retirement System or the judicial and legislative plans. Requests for documents from those plans must be addressed to them." Although Retirement failed to provide Mr. Storm with "the name and location of the official custodian[s] of" the Kentucky Teachers' Retirement System, the Judicial Retirement Plan or the Legislators' Retirement Plan per KRS 61.872(4), the mandatory language of KRS 61.661(1) otherwise validates the agency's position.
Upon receiving notification of Mr. Storm's appeal from this office, Ms. Jones briefly supplemented her original response on behalf of Retirement. Quoting the language of KRS 61.661(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l) , Ms. Jones argued that the records in dispute "clearly fall within" this exception because information relating to retired members' accounts is confidential under KRS 61.661. Clearly, Ms. Jones concluded, "the amount of a retired member's retirement allowance is data regarding a member's account [and] cannot be released under KRS 61.661." She reiterated that Retirement also informed Mr. Storm that it does not administer the other plans and indicated that he should request such records from those retirement plans. Retirement voluntarily provided Mr. Storm with statistical information regarding the number of retired members receiving $ 100,000 or more a year, Ms. Jones noted, as the November 28, 2012, e-mail attached to her supplemental response confirmed. Based upon the following, this office affirms the agency's denial of Mr. Storm's request.
Among those records excluded from application of the Open Records Act by operation of KRS 61.878(1) are "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l) . Resolution of this appeal turns on the application of KRS 61.661(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which:
Each current, former, or retired member's account shall be administered in a confidential manner and specific data regarding a current, former, or retired member shall not be released for publication unless authorized by the member ; however, the system may release account information to the employer or to other state and federal agencies as it deems necessary or in response to a lawful subpoena or order issued by a court of law. The current, former, or retired member's account shall be exempt from the provisions of KRS 171.410 to 171.990.
(Emphasis added.) 1 As with any decision involving statutory application, our duty "is to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577 (Ky. 1994), citing Gateway Construction Co. v. Wallbaum, 356 S.W.2d 247 (Ky. 1962). In so doing, this office is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. Rather, the Attorney General must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated. Stogner v. Commonwealth, 35 S.W.3d 831, 835 (Ky. App. 2000). This office "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4). Claude D. Fannin Wholesale Co. v. Thacker, 661 S.W.2d 477, 480 (Ky. App. 1983). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there." Commonwealth of Kentucky v. Gaitherwright, 70 S.W.3d 411, 413 (Ky. 2002), citing Gateway Construction Co. , above . When viewed in light of these fundamental principles, the italicized language quoted above validates the interpretation of KRS 61.661(1) set forth by Retirement.
This office has consistently deferred to agencies' reasonable interpretations of confidentiality provisions binding upon them absent binding legal authority to the contrary. 97-ORD-33 (deferring to Department of Corrections regarding interpretation of KRS 197.025(1)); 98-ORD-78 (deferring to then Revenue Cabinet regarding interpretation of KRS 131.190); 04-ORD-252 (deferring to Department of Workers' Claims regarding interpretation of KRS 342.229); 08-ORD-177 (deferring to Department of Financial Institutions regarding application of applicable federal regulations incorporated into Act by KRS 61.878(1)(k)); 09-ORD-058 (deferring to Education and Workforce Development Cabinet regarding interpretation of KRS 341.190(3) "absent express legal authority that is contrary"); 10-ORD-080 (deferring to Cabinet for Health and Family Services regarding interpretation of KRS 209.140 absent contrary legal authority) ; 11-ORD-168 (adopting interpretation by Kentucky State Police of statutory language codified at KRS 237.110(10) absent contrary legal authority) . Compare 11-ORD-028 (rejecting blanket denial by Retirement of request for documents verifying the eligibility of local officials to participate in retirement systems based on the unsupported claim that disclosure of responsive documents would create a "substantial likelihood of member identification"); 11-ORD-049 (holding that Retirement construed KRS 61.661(1) too broadly in denying request for payroll information of Retirement employees).
"Given Retirement's fiduciary role, and its stated goal of 'improving public transparency [codified at KRS 61.845 (19)],'" in 11-ORD-028 the Attorney General noted that KRS 61.661(1) "should be read no more broadly than necessary to effectuate its purposes." 11-ORD-028, p. 5. However, in concluding that KRS 61.661(1) was not intended to impede the ability of the public to monitor the eligibility of members, and records confirming the eligibility of local officials from the specified counties and cities to participate in the retirement systems were therefore subject to disclosure, this office acknowledged that "KRS 61.661(1) is purposed to subserve the privacy interests of current, former, and retired members in their specific account data[.]" Id. KRS 61.661(1) is "narrowly worded to prohibit release of one category of records, admittedly a large one," that Retirement maintains. Id. The benefit information requested is precisely the kind of "specific data" that falls into the protected category.
Significantly, in OAG 80-506 this office affirmed the denial by Retirement of a request for lists identifying specific members of the various retirement systems and reflecting each individual member's total months of service credit, total dollar amount of contributions, and total dollar amount of employer contributions. 2 Accord, 99-ORD-209 (affirming denial by Judicial Form Retirement System of request as to entries on responsive documents reflecting transfer of service from Retirement, total service, and statutory monthly pension for a retired judge). The holding of OAG 80-56 is controlling here. A list identifying those individuals who received benefits totaling $ 100,000 or more in calendar year 2011, much like a list(s) identifying members' total months of service credit, total dollar amount of contributions, etc. would unquestionably reveal "specific data" regarding, in this instance, accounts of retired members, in direct violation of KRS 61.661(1). While this office remains of the view that KRS 61.661(1) should only be interpreted as broadly as necessary to effectuate its purposes, the information requested epitomizes the kind of "specific data" regarding the accounts of members to which the General Assembly expressly afforded protection. Thus, Retirement properly denied Mr. Storm's request on the basis of KRS 61.661(1), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
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.
Distributed to:
Nick StormJennifer A. Jones
Footnotes
Footnotes