Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
Loy Crawford appeals the City of West Buechel's partial denial of his June 5, 2014, request for city employee payroll records from January 1, 2014, through May 31, 2014. Mr. Crawford requested the payroll register for all employees including "complete name, rate of pay, hours, pay, year to date hours, amounts, taxes YTD, deductions and memos, CERS w/YTD, with regular pay, vacation pay, sick pay, bonus pay, bereavement [pay], overtime pay, holiday pay, and federal and state medicare, local withholding . . . ." Mayor Sharon Fowler responded that she would decide "whether unrequested information will be copied and carried or examined on sight" based on her belief that employees' personal information had been made public.
After Mr. Crawford initiated this appeal, Mayor Fowler advised that she decided "to have Council[man] Crawford 1 come into the office to review the request [sic], prior to copies being made." She again referred to "information which was private," but did not describe the private information withheld or the legal basis for withholding it.
KRS 61.872(3)(a) authorizes a public agency to require an open records applicant who resides or has his principal place of business in the county in which the requested records are located to require the applicant to inspect the records before providing the applicant with copies. As a resident of the county in which West Buechel is located, Mr. Crawford can be required to inspect nonexempt public records before obtaining copies. 14-ORD-136, p. 2. No restrictions on the hours of inspection can be placed on his right to inspect the records during the city's regular office hours, and he cannot be denied copies after inspection. KRS 61.872(3)(a) ("A person may inspect the public records . . . [d]uring the regular office hours of the public agency" ); KRS 61.874(1) ("Upon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all records not exempted by the term of KRS 61.878").
Mayor Fowler expresses concern about the existence of private information in the payroll records disclosed to Mr. Crawford, but does not identify the information or the statutory basis for withholding it. KRS 61.880(1) states that "[a]n agency response denying, in whole or in part, inspection of any record shall include a statement of the exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " The City of West Buechel violated KRS 61.880(1) by failing to identify the "private" information withheld and the legal basis for withholding it. 14-ORD-136, p. 2. "It is the substance of the material sought to be discovered that will determine the propriety of" the city's partial denial of Mr. Crawford's request.
Edmondson v. Alig, 926 S.W.2d 856, 859 (Ky. App. 1996). The city must therefore supplement its response by providing Mr. Crawford with a description of the categories of records withheld and an explanation of how the privacy exemption applies to the records or information withheld.
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 856 (Ky. 2013).
On July 7, 2014, Mr. Crawford communicated additional concerns to this office following inspection of the records. Because those concerns were not raised in his original appeal, we cannot address them in this open records decision.
Either party may appeal this decision 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:
Loy CrawfordSharon FowlerMarti Sitz
Footnotes
Footnotes
1 Mr. Crawford serves on the West Buechel City Council. This fact is relevant to an analysis under KRS 61.878(5) which promotes agency sharing of statutorily protected information "[w]hen the exchange is serving a legitimate government need or is necessary in the performance of a legitimate government function." Mr. Crawford does not assert an enhanced right of access to otherwise protected information based on a legitimate governmental need.