Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
Andy Tucker initiated two appeals 1 by separate letters dated July 13, 2015, challenging the inaction of the Warren County Rescue Department (WCRD) upon receipt of two separate requests that he made under the Open Records Act per KRS 61.880(1). 2 These appeals have been consolidated for purposes of administrative review under KRS 61.880(2). Mr. Tucker submitted his requests to WCRD Board of Directors Chairperson Deborah Williams on June 18, 2015, asking for his own "pay stubs for the past 6 years" in addition to his:
. employee personnel file from 2000-2015, [r]egardless of file type, including all current and related discipline reports, written warnings, suspensions, dismissal, termination, reduc[tion] in rank, training reports and logs, certifications, medical reports, awards and letters of recommendation, performance reviews by Board of Directors with corrected action and recommendations for improvement [- all] documents associated with Andy Tucker's employment with Warren County Rescue from 2000-2015[.]
Mr. Tucker also requested the approved minutes of the WCRD Board of Directors meeting held on April 16, 2015. As of July 13, 2015, Mr. Tucker had not received a written response to either of these requests made under KRS 61.880(1).
Upon receiving notification of Mr. Tucker's appeals, legal counsel for the WCRD responded on its behalf, initially denying that WCRD is a "public agency" within the meaning of KRS 61.870(1), i.e. , for purposes of the Open Records Act. 3 Having disputed that WCRD is a "public agency" under KRS 61.805(2), i.e. , for purposes of the Open Meetings Act, counsel noted that "KRS 61.870 provides substantially the same requirements as the Open Meetings Act to qualify as a public agency under this statutory scheme." Citing 06-ORD-085, counsel further argued that "the only way a volunteer fire department 'which is an independent organization disassociated from the city or county, except insofar as a contractual relationship is concerned' would be subject to" provisions of the Open Records Act, "would be 'if it derives at least 25% of its funds expended in the state from state or local authority funds.'" Because Warren County's "donation only constitutes approximately 5% of the [WCRD's] total funding," counsel asserted that WCRD is not a "public agency" within the meaning of KRS 61.870(1). This office respectfully disagrees.
In 15-OMD-142 (In re: Andy Tucker/Warren County Rescue Department, rendered on August 5, 2015), this office determined that WCRD was a "public agency" under KRS 61.805(2)(f) and therefore required to comply with provisions of the Open Meetings Act. Because KRS 61.870(1)(i), the relevant definitional section found in the Open Records Act, largely mirrors KRS 61.805(2)(f), the following analysis of this determinative question applies with equal force in this context:
[T]he Board "currently consists of four members appointed by the Warren County Judge Executive and three members appointed by the [WCRD]." Under KRS 61.805(2)(f), [and KRS 61.870(1)(i)] this fact is dispositive on the threshold question of whether WCRD is a "public agency" for purposes of the Open Meetings Act [and the Open Records Act] regardless of whether a member appointed by the Judge Executive resigned after the meetings in dispute and "has yet to be replaced ." Although every other subsection of KRS 61.805(2) is facially inapplicable, KRS 61.805(2)(f) [and KRS 61.870(1)(i), see note 1] defines the term "public agency" as "[a]ny entity when the majority of its governing body is appointed by a 'public agency' as defined in paragraphs (a), (b), (c), (d), (e), (g), or (h) of this subsection, a member or employee of a 'public agency, ' a state or local officer, or any combination thereof." See 03-OMD-089; 11-OMD-060; 13-OMD-037; compare 02-OMD-087 (only four of the eight members of the purported agency's board were appointed by a public agency which did not constitute a majority). The Warren County Judge Executive, a local officer, appointed four members, a majority, of the agency's governing body, the Board. . . . Because the WCRD is, by definition, a "public agency" within the meaning of KRS 61.805(2) [and KRS 61.870(1)], it was required to comply with procedural and substantive provisions of [both Acts.]
15-OMD-142, pp. 5-6 (emphasis added). See 12-ORD-032 (definitional sections found at KRS 61.870(1)(i) and (j) were "self-explanatory," and Task Force was a "public agency" under KRS 61.870(1)(i) as the Judge/Executive, a "local government officer," appointed the majority of its governing body) .
On appeal WCRD asserted that "certain records" are exempt from public inspection per KRS 61.878. Partially quoting the language of KRS 61.878(1)(a), without citation thereto, 4 WCRD denied access to all of the records being sought in their entirety, as the records "are exempt under the Open Records Act. " 5 Existing legal authority refutes the agency's position regarding the accessibility of personnel files and payroll records of public employees and the approved minutes of public agency meetings. Based upon the following, this office finds the agency's ultimate disposition of Mr. Tucker's requests both procedurally and substantively deficient.
A public agency such as WCRD must comply with the procedural and substantive requirements of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to properly submitted requests. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." A public agency cannot generally postpone this deadline. 04-ORD-144, p. 6. Thus, in failing to issue a written response of any kind to Mr. Tucker's requests within three business days of receipt and provide any existing responsive documents that were not exempt from disclosure under KRS 61.878(1), WCRD violated the Open Records Act.
KRS 61.880(1) also provides that a public "agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." Thus, in order to satisfy its burden of proof, WCRD was required to not only cite the applicable statutory exception, but also provide a brief explanation of how that exception applied to records or portions thereof being withheld in a timely written response per KRS 61.880(1). 04-ORD-106, p. 6; 12-ORD-211. On appeal WCRD failed to reference KRS 61.878(1)(a) specifically or provide any explanation of how it applied to records being withheld.
"Neither the courts nor this office have determined that the contents of a public employee's personnel file are entirely shielded from disclosure by operation of KRS 61.878(1)(a)." 08-ORD-178, p. 3. Rather, this office has determined that only those records, or portions of records, in a public employee's personnel file that are unrelated to the performance of his or her public duties can be properly withheld under this exception. Id. In 03-ORD-012, 6 the Attorney General held that the Berea Independent School District had improperly denied a request for the complete personnel records of named employees on the basis of KRS 61.878(1)(a). Reasoning that "a request for access to a personnel file requires no greater degree of specificity than any other open records request," the Attorney General concluded that the agency must "determine what is and is not subject to Open Records." Id., p. 7; 08-ORD-175. The "agency must disclose the nonexcepted records and identify, in writing, any responsive records withheld, [c]ite the statute(s) authorizing the withholding, and briefly explain how the statute applies to the record withheld" per KRS 61.878(4). Id. See 07-ORD-192.
As the Attorney General has frequently observed, there is ample legal authority to guide a public agency in making this determination. Quoting extensively from 97-ORD-66, the Attorney General held that a "public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's [résumé] reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. . . . " 03-ORD-012, p. 6. In addition, "reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. . . . Letters of resignation submitted by public employees have also been characterized as open records." Id., p. 8, citing 97-ORD-66, p. 5; 08-ORD-170; 11-ORD-210. These opinions are premised on the idea "that a person does not typically work, or attend school, in secret, and therefore the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment. " 93-ORD-32, p. 3; 00-ORD-090. In other words, the "privacy rights of the public employee extend only to matters which are not related to the performance of his [or her] work." OAG 80-43, p. 3.
Even if existing law did not entitle any member of the public, including Mr. Tucker, to inspect records contained in the personnel file of a public agency employee, with limited exceptions, Mr. Tucker is a former public agency employee. 7 KRS 61.878(3), the "exception to the exceptions" codified at KRS 61.878(1), vests a public employee with a broader right of access to records that relate to him than a member of the general public has. 8 When applicable, KRS 61.878(3) overrides all of the statutory exceptions to public inspection set forth at KRS 61.878(1), except KRS 61.878(1)(k) and (l), neither of which applies here. An interpretation of KRS 61.878(3) which does not include former public employees like Mr. Tucker "'is clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the Kentucky Open Records Law.'" 97-ORD-87, p. 3 (citation omitted)(holding it was "simply inconceivable that the legislature intended to endow applicants for employment with a broader right of access to records relating to them than former public employees" ); 01-ORD-126; 06-ORD-083; 09-ORD-116. With the exceptions of "any examination or any documents relating to ongoing criminal or administrative investigations by an agency," Mr. Tucker is entitled to an unredacted copy of his personnel file, or any record that relates to him, "including preliminary and other supporting documentation" and his payroll records, 9 per KRS 61.878(3), which overrides KRS 61.878(1)(a) on the facts presented. Mr. Tucker, like any member of the public, is also entitled to a copy of the approved minutes of the Board's April 16, 2015, meeting.
KRS 61.835 is entitled, "Minutes to be recorded - Open to public." Pursuant to KRS 61.835, the minutes of action taken at every meeting of a public agency (under KRS 61.870(1) ), "setting forth an accurate record of votes and actions at such meetings, shall be promptly recorded and such records shall be open to public inspection at reasonable times no later than immediately following the next meeting of the body." (Emphasis added). If, at the meeting in question, "nothing was decided or acted upon or voted upon the minutes could, under KRS 61.835, consist of nothing more than a record of the actions which opened and adjourned the meeting. This material would be subject to inspection ." 05-OMD-188, p. 4, citing 95-OMD-64, p. 4 (emphasis added); 05-ORD-209. Both the Open Meetings Act and the Open Records Act "mandate public access to the minutes of a public body." OAG 83-139, p. 1 (". . . no final action is to be taken in a closed session and action taken in an open session after a closed session should be recorded in the minutes and made available to the public"). The statutory language codified at KRS 61.835 requires no interpretation. WCRD violated the Act in denying access to approved minutes of its public meeting on the basis of KRS 61.878(1)(a).
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 Mr. Tucker simultaneously filed three appeals under the Open Meetings Act per KRS 61.846(2), identified as Log Nos. 201500281, 201500282, and 201500283. Issues raised in those appeals were resolved in a recent decision by this office, 15-OMD-142. The Warren County Rescue Department issued a consolidated response to all five appeals upon receipt of the notifications of his Open Meeting Appeals; relevant portions will be referenced in this decision.
2 Information available on the Secretary of State's website confirms that WCRD was originally incorporated as the Bowling Green-Warren County Rescue and Emergency Squad, Inc. but more recent filings indicate that its assumed name is the "Warren County Rescue Department." See 15-OMD-142.
3 KRS 61.870(1)(i) defines "public agency" to include "[a]ny entity where the majority of its governing body is appointed by a public agency as defined in paragraph[(a)-(h)], (j), or (k) of this subsection; by a member or employee of such a public agency; or by any combination thereof[.]"
4 Among those records excluded from application of the Act in the absence of a court order are public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(1)(a).
5 WCRD secondarily asserted that Mr. Tucker "previously stole same from the office." The agency cannot produce nonexistent records or those which it does not possess. See 15-ORD-014. However, the record on appeal remains unclear as to whether some or all of the records were removed as of the date of the original requests; the agency did not initially respond or deny access on this or any basis. Accordingly, this office addresses the merits of the agency's belated argument relative to KRS 61.878(1)(a), particularly since its position is contrary to governing legal precedent as to any existing responsive documents.
6 The Department of Corrections appealed 03-ORD-012 and the Kentucky Supreme Court affirmed our interpretation of KRS 61.872(2) in Commonwealth v. Chestnut, 250 S.W.3d 655 (Ky. 2008). See 08-ORD-175.
7 Such records would still exist if properly maintained. See Local Governments General Records Retention Schedule , Records Series L5034 (Personnel File - retain five years after termination of employment or sixty (60) years from date of hire depending on record); L5798 (Payroll Register - Pay Period, retain for three years); and L4958 (Official Minutes - retain one copy permanently - no access restrictions).
8 KRS 61.878(3) provides:
No exemption in this section shall be construed to deny, abridge, or impede the right of a public agency employee, including university employees, an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him. The records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores, and preliminary and other supporting documentation. A public agency employee, including university employees, applicant, or eligible shall not have the right to inspect or to copy any examination or any documents relating to ongoing criminal or administrative investigations by an agency.
9 Any member of the public is entitled to access public employee payroll records even if limited information is properly withheld on the basis of KRS 61.878(1)(a). See 07-ORD-056 (reaffirming that information "such as withholding for taxes, insurance, retirement, credit union, bonds, charitable contributions and annuities are items which" can be redacted from payroll records under KRS 61.878(1)(a)). This office has long 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." OAG 90-30, p. 2, citing OAG 76-717; OAG 91-7; 10-ORD-226 (agency's reliance on KRS 61.878(1)(a) was misplaced as to public employee payroll records).