Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Transportation Cabinet ("Transportation") violated the Open Records Act in redacting information pertaining to deductions from payrolls for public work contracts. We find that Transportation did not violate the Open Records Act in redacting information pertaining to deductions from payrolls for public work contracts.
Kentucky Fair Contracting ("KFC") submitted two open records requests to Transportation on June 10, 2016. KFC requested "copies of all payroll for general and subcontractors" pertaining to various contracts. Transportation responded to that request by providing redacted copies of the payrolls, which displayed the names and gross wages of employees, but redacted the amounts of all deductions, and all types of deductions other than state and federal taxes. On June 29, 2016, KFC sent a follow-up letter stating that "you redacted the deductions from the copies. . . . How is the deduction redacted, it is not any personal information that I could use for anything. I am looking to see if they paid the proper wages and claimed the proper deductions. I would like to appeal the open records request and request that all deductions not be redacted. "
Transportation responded on July 11, 2016, stating:
The information withheld included federal, state, city, and county taxes, FICA contributions, 401K contributions, savings contributions, insurance, number of dependents and court ordered wage garnishments of each worker. . . .
. . . Concerning the necessity of this information to ensure compliance with Federal Laws, I have been informed that only classification, gross wages, fringe benefits, and types of deductions are necessary to analyze compliance, and that the actual amount of the deductions is not generally considered in making a determination. Thus, this Cabinet reaffirms its original decision to withhold this information, claiming that private citizens have a privacy interest in the amounts they choose to have withheld from their paychecks, and that release of this information would constitute a clearly unwarranted invasion of personal privacy.
KFC initiated this appeal on Aug. 15, 2016, on the grounds that:
In order to meet both Kentucky and Federal guidelines all information which accounts for and totals up to the posted Prevailing Wage, regardless if the State or Federal Rates are used it cannot be redacted. . . . They redacted information that you need to audit and see if they are being paid the correct wages and fringe benefit. Redacted the taxes is in no way personal information you cannot access the taxes through the Kentucky Revenue System or the IRS, they also redacted what benefits the employee has.
Transportation responded to the appeal on Sept. 23, 2016, stating:
[Transportation] is in agreement that the wage amounts including rates, hours worked and totals should be provided . . . under the Kentucky Open Records Act. . . . However, the payroll transcripts also contain information regarding deductions made from these individual's [sic] wages. These include taxes withheld, FICA contributions, 401K contributions, savings contributions, insurance amounts, number of dependents and wage garnishments. These elections are not determined by [Transportation] and are of a private nature. They have little or no consequence on the Commonwealth [sic] at large.
KRS 61.878(1)(a) exempts from the Open Records Act "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " The federal Davis-Bacon Act, 40 U.S.C. § 3141-48, requires the payment of prevailing wages in all federal contracts for public works in excess of $ 2,000. Id. § 3142. 29 C.F.R. § 5.5(a)(3)(i) requires contractors to maintain payrolls containing "the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof . . .), daily and weekly number of hours worked, deductions made and actual wages paid. " 29 C.F.R. § 5.5(a)(3)(ii)(A) provides that the contractor shall submit a copy of all payrolls weekly to the appropriate federal agency, which "shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee . . . ." 29 C.F.R. § 5.5(a)(3) requires federal public works contractors to keep detailed payroll information, including deductions and fringe benefits, and submit those weekly to the appropriate federal agency, although such submissions shall not include full social security numbers and home addresses. Similarly, Kentucky's prevailing wage laws require maintenance of payroll records, and expressly include fringe benefits as part of the calculation of prevailing wage, although Kentucky's laws and regulations do not require the regular reporting of payroll records as provided in federal regulations. 1 At issue is whether such payroll information is accessible under the Open Records Act.
"[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)(a)." 16-ORD-128; 07-ORD-056; OAG 82-233. See also 10-ORD-064 ("The District did not violate the Open Records Act in redacting information relating to deductions before releasing payroll records . . . ."). While KFC claims an interest in the information in order to ensure that prevailing wage laws are being complied with, "assertions of a public interest in 'monitoring' governmental operations 'have not been viewed favorably by the courts,'" and are "outweighed here by the privacy interests employees have in controlling dissemination of their names, addresses and wage information."
Hopkins v. U.S. Dep't of Hous. & Urban Dev., 929 F.2d 81, 88 (2d Cir. 1991). Accordingly, in redacting payroll information reflecting deductions, Transportation did not violate the Open Records Act.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
Footnotes
Footnotes
1 KRS 337.510 requires determination of a prevailing wage and its inclusion in contracts for public works. KRS 337.505(2) further specifies that the definition of "prevailing wage" includes fringe benefits. KRS 337.530(2) also provides that all contractors and subcontractors for public works:
shall keep full and accurate payroll records covering all disbursements of wages to their employees to whom they are required to pay not less than the prevailing rate of wages. Such records shall indicate the hours worked each day by each employee in each classification of work and the amount paid each employee for his or her work in each classification. They shall be open to the inspection and transcript of the commissioner . . . at any reasonable time. . . .
KRS 337.530(2) similarly requires contractors for public works to keep payroll records reflecting prevailing wage payments and to maintain them for inspection, although there is no regular reporting requirement.