Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Managing Editor Brendan McCarthy, Kentucky Center for Investigative Reporting ("Center"), initiated this appeal by letter dated July 22, 2016, generally alleging that "the University of Louisville ["University"] and the University of Louisville Foundation ["Foundation"] have violated Kentucky's Open Records Act by not responding within three days" to requests per KRS 61.880(1), providing only "partial responses or no responses to requests, and making illegal redactions to records being sought by the [Center]." For the reasons that follow, this Open Records Decision will address only the substantive question relating to Reporter Kate Howard's May 24, 2016, request directed to the University. 1 Mr. McCarthy challenged the actions of the Foundation relative to a June 16, 2016, request made by Reporter Jim McNair seeking eight categories of records and information relating to financial disclosures identified on its 2015 Annual Financial Report; however, those issues will be addressed in a separate Open Records Appeal resolving Log Number 201600301. Mr. McCarthy also questioned the actions of both the University and the Foundation relative to February 8, 2016, requests by the Center seeking "attestation and disclosure forms," etc . The instant appeal is duplicative in that regard. On June 30, 2016, Mr. McCarthy initiated an Open Records Appeal, identified as Log Number 201600276 (pending when this Appeal was initiated) , challenging the actions of the Foundation relative to his February 8, 2016, request directed to Foundation Records Custodian, Kenyatta Martin, as he acknowledged in his July 22, 2016, letter. Even if this Open Records Decision was not focused exclusively on the actions of the University, this office already resolved those issues recently in 16-ORD-164 (In re: Kentucky Center for Investigative Reporting/University of Louisville Foundation, rendered on August 5, 2016), and is prohibited from reconsidering that Open Records Decision. See 40 KAR 1:030, Section 4.
Having carefully reviewed all of the correspondence, including multiple attachments, included with Mr. McCarthy's July 22, 2016, letter of appeal, this office was unable to locate a copy of a February 8, 2016, request directed to the University . Accordingly, to the extent Mr. McCarthy was attempting to challenge the University's disposition of a February 8, 2016, request, his appeal is deficient. 2 Pursuant to KRS 61.880(2)(a):
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
In sum, the written request and the agency's written response, if any, comprise the record upon which the Attorney General relies in reviewing the actions of a public agency. Thus, 40 KAR 1:030, Section 1 provides that "[t]he Attorney General shall not consider a complaint that fails to conform to . . . KRS 61.880(2), requiring the submission of a written request to the public agency and the public agency's written denial, if the agency provided a denial." Because Mr. McCarthy failed to provide this office with a copy of his February 8, 2016, request, his appeal is deficient relative to same and this office is therefore precluded from addressing the merits of the agency's response(s) per KRS 61.880(2)(a) and 40 KAR 1:030, Section 1.
The only substantive question properly before this office relates to Ms. Howard's May 24, 2016, request for the current employment contract and/or employment letter" of multiple University officials and the "pay stub/ payroll record reflecting 2015 compensation, or the final pay stub for those who are no longer employed with the [U]niversity or its [F]oundation, for all the aforementioned senior administrators." In response to Mr. McCarthy's allegation that the University failed to issue a timely response to Ms. Howard's May 24, 2016, request, Counsel for the University correctly observed, that by letter dated July 13, 2016, a copy of which Counsel attached to her August 1, 2016, letter, this office determined that issues raised in Log Number 201600264 (challenging the University's failure to respond) were moot per 40 KAR 1:030, Section 6, based on the understanding that all of the records in dispute were ultimately disclosed. In the current Appeal, Mr. McCarthy challenged the propriety of the redactions that were made by the University from the responsive pay stubs. However, governing legal authority validates the actions of the University in this regard.
Citing KRS 61.878(1)(a) and quoting 02-ORD-148 (holding that a public employee's home address, social security number, etc. and the amounts withheld for taxes, insurance, retirement and savings could be properly withheld from pay stubs) , Counsel for the University maintained that information was redacted in accordance with a line of decisions by the Office of the Attorney General. 3 This assertion is correct. In OAG 82-233, for example, the Assistant State Treasurer asked this office to determine whether "payroll vouchers" of public employees are public records and, if so, whether such records are open records, an issue of first impression at that time. 4 Noting that payroll vouchers are, in fact, "public records" within the meaning of KRS 61.870(2), the Attorney General engaged in the following analysis:
In past opinions we have said that vouchers, check stubs and account books are public records and are not exempt from public inspection. OAG 79-27 and OAG 79-575. As to personnel records of public employees we have said:
(Emphasis added). See OAG 82-275 (applying this principle to Deferred Compensation deductions); OAG 88-13; 98-ORD-184; 07-ORD-056.
The current Appeal presents no basis for departing from this well-established line of authority. The University did not violate the Open Records Act in redacting personal information such as the home address, social security number, Employee ID, marital status, etc., which Mr. McCarthy did not challenge, from the paystubs disclosed; nor did the University err in withholding the amounts of taxes paid, "Before-Tax Deductions, After-Tax Deductions, Employer Paid Benefits, Taxable Gross, Total Deductions, and Net Pay," redaction of which Mr. McCarthy did specifically challenge. Compare 16-ORD-128 (agency erred in redacting entries reflecting additional salary and/or incentive pay from public employee's paystub on the basis of KRS 61.878(1)(a)). Although prior decisions may not expressly recognize the propriety of some of those specific redactions by name, our holding today is a logical extension of the reasoning upon which the referenced authority was premised. Requiring disclosure of information which, in conjunction with accessible information such as "Total Gross Pay," would enable the public to extrapolate information that is protected from disclosure, would defeat the purpose of properly invoking KRS 61.878(1)(a) to justify denying access to information that is protected. Accord 07-ORD-102 (because requester possessed name, date of birth, judicial service, and final compensation for each member of the Senior Status Program for Special Judges, disclosure of the pension benefit and nonjudicial service credits of both former and current senior status judges would enable any requester to identify members by name and benefit thereby defeating the intent of KRS 61.878(2) and "be tantamount to releasing information expressly protected by KRS 61.661(1) and 99-ORD-209"). 5 The University's partial denial of the May 24, 2016, request is affirmed.
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per 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.
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