Opinion
Opinion By: Andy Beshear,Attorney General;Mitchel T. Denham,Assistant Deputy Attorney General
Open Records Decision
Mr. Daniel Konstantopoulos appeals the Office of the Clark County Judge-Executive's disposition of his January 14, 2016, request for a copy of all paystubs issued on specified dates to the County Treasurer. Having received no response to his open records request, Mr. Konstantopoulos filed an appeal with the Office of the Attorney General on January 26, 2016. Clark County Attorney Brian Thomas hand-delivered redacted copies of the paystubs to Mr. Konstantopoulos at the January 27, 2016, meeting of the Clark County Fiscal Court. 1 Following receipt of the redacted paystubs, Mr. Konstantopoulos supplemented his appeal challenging the redaction of gross wages, taxes, and net pay without legal justification.
Clark County Attorney Brian Thomas responded to Mr. Konstantopoulos' appeal on behalf of the County Judge. 2 He acknowledged the agency's delayed written response to Mr. Konstantopoulos' request, attributing the delay to an intervening snow storm and "unintentional human error," as well as its failure to identify the statutory basis for redacting the paystubs. Mr. Thomas confirmed that he hand-delivered the redacted paystubs to Mr. Konstantopoulos on January 27, asserting that the issues on appeal were thereby moot since "the procedural error does not waive the exemption. " Continuing, he observed:
Information regarding [the Treasurer's] name and even his address (information which is not required) has been provided together with his salary, any additional salary and incentive pay (collectively representing gross pay). Gross pay is defined as the salary one receives for the performance of his job duties. As set forth in Attorney General Opinion 82-233, "a payroll voucher contains a mixture of exempted and non-exempted information. The name of the person being paid and the gross pay to that person is not exempt from public disclosure. Other information on the voucher such as withholding for taxes, insurance, retirement, credit union, bonds, charitable contributions and annuities are items which come under the exemptions provided under KRS 61.878(1)." Furthermore, a public agency has the right to refuse to provide access to exempted material. Using that guidance and authority, the Treasurer properly redacted information regarding retirement, taxes and other deductions from pay (which could include child support, garnishments, and/or purchase of additional insurance products). The redaction of benefits-insurance is clearly personal as it relates to and can be influenced by the number of individuals claimed by the employee and whether the employee has an insurance or health savings account. Furthermore, net pay and the amount of direct deposit would involve a calculation and deduction of information otherwise properly exempted. Importantly the unredacted portions of the documents provided the specific information that Mr. Konstantopoulos requested . . . . 3
Noting that Mr. Konstantopoulos identified dates that, in some instances, did not coincide with the issuance of paychecks, Mr. Thomas urged this office to dismiss Mr. Konstantopoulos' appeal since the agency "fully complied with the intent of the Open Records law."
Because the agency redacted certain portions of the responsive records, we cannot dismiss this appeal. There are two issues that we are required to address. First, the agency failed to meet the requirements of KRS 61.880(1) when it failed to "determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of [the] request whether to comply with the request and [to] notify in writing the person making the request, within the three (3) day period, of its decision." Mr. Konstantopoulos' right to a timely written response, and, ultimately, his right of timely access, "did not turn on the purpose for which the request [was] made or the identity of the person making the request."
Zink v. Com., Department of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 828 (Ky. App. 1994). We do, however, understand that an intervening snow storm which closed county offices contributed to the late response. While this appears to be a practical and understandable reason for delay, the legislature did not include such intervening closures in its three (3) day response requirement. We are bound to interpret these cases by the language of the act.
Turning to the issue of paystub redaction, we note that in an early opinion this office recognized:
[A] payroll voucher contains a mixture of exempted and non-exempted information. The name of the person being paid and the gross pay to that person is not exempt from public disclosure. Other information on the voucher, such as withholding for taxes, insurance, retirement, credit union, bonds, charitable contributions, and annuities are items which come under the exemptions provided by KRS 61.878(1)(a).
OAG 82-233, p. 2. The County Judge Executive rightfully redacted the "withholdings" from the paystubs under KRS 61878(1)(a) as discussed in OAG 82-233. However, OAG 82-233 did not address the public's right of access to those portions of paystubs identifying "additional salary and incentive pay" as reflected in separate entries and not as reflected in the aggregate in the public employee's gross pay. Specific amounts received for public service in the form of additional salary and incentive pay do not represent information of a personal nature the public disclosure of which constitutes a clearly unwarranted invasion of personal privacy but, instead, represent "amounts paid from public coffers" which are "uniquely of public concern." OAG 90-30, p. 3, cited with approval in 15-ORD-186, p. 2. "The public is entitled to records documenting exact amounts paid from public monies, to include amounts paid for items, or for salaries, etc." as opposed to amounts withheld from those records relating to an employee's personal financial affairs such as "taxes, insurance, retirement, credit union, bonds, charitable contributions, and annuities. " OAG 82-233, p. 2. We are aware of no legal authority supporting the proposition that a public agency may properly redact entries on a paystub identifying additional salary and/or incentive pay earned by a public official or employee. While it is clear the agency acted in good faith, we cannot accept its argument that disclosure of the Treasurer's gross pay satisfied its legal obligation to disclose all nonexempt entries that appear on the Treasurer's paystubs. Accordingly, we find that the agency must provide Mr. Konstantopoulos with copies of the Treasurer's paystubs from which additional salary and incentive pay are not redacted.
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.
Footnotes
Footnotes
1 Mr. Konstantopoulos is a Clark County Magistrate.
2 The parties describe events leading up to Mr. Konstantopoulos' open records request and appeal that have no bearing on the open records issue the appeal raises. The requester focuses on the propriety of Mr. Thomas' representation of the County Judge, a non-open records issue that cannot be resolved in an open records appeal. See KRS 61.880(2) (limiting the Attorney General's authority to issuing "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884."). However, it is noted that County Attorneys regularly represent County Judge Executives and other county officers in both responding to open records requests and responding to open records appeals. Mr. Konstantopoulos' would have this office force local governments expend resources to hire outside attorneys to respond to open record requests. A requirement such as this could force local governments to incur significant legal costs. While permitted, we do not believe such a requirement is wise policy or required by the law. In addition, the agency focuses on the requester's identity and purpose in requesting the paystubs is immaterial. KRS 61.872(2). Zink v. Com. Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 828 (Ky. App. 1994.
3 In addition, Mr. Thomas cited 95-ORD-151 (for the proposition that KRS 61.878(1)(a) authorizes nondisclosure of records in which a person has a cognizable privacy interest if there is no competing public interest); OAG 88-13 (for the proposition that an agency properly responded to a request for "materials relating to public employee payroll" by disclosing a list containing annual salaries and hourly wage figures); and Zink, 902 S.W.2d at 838 (recognizing, in the context of a request for workers' compensation records, that private citizens have a privacy interest in their wage rates).