Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the City of West Buechel violated the Open Records Act in not providing payroll records, and in redacting voluntary deductions from payroll records. We find that West Buechel provided the payroll records on appeal, rendering the request moot. The record on appeal is insufficient to conclude whether West Buechel redacted voluntary payroll deductions, which is permissible under the Open Records Act, or vacation and sick leave time, which is impermissible.
Tom Burch submitted an open records request to West Buechel on May 3, 2017, requesting "ADP Master Control year end weekly payroll report for pay date December 30, 2016 ." West Buechel responded on May 9, 2017, providing payroll records with certain information redacted. The payroll records indicated that they were for "Period Ending: 12/31/2016" and "Pay Date: 01/06/2017." Burch responded on May 22, 2017, stating:
I received . . . the ADP payroll report for pay date 1/6/2017, which is the first payroll report for calendar year 2017.
However, my Open Records Request of May 3 asked for the ADP Master Control payroll report for pay date 12/30/2016, the last payroll report for calendar year 2016. . . .
You sent me the wrong payroll report.
Please provide me with the ADP Master Control year end weekly payroll report for pay date December 30, 2016 , as I originally requested.
In addition, on the payroll report you provided in error, it appears that you improperly redacted certain vacation and sick leave hours in the far right hand column for select employees, including yourself.
West Buechel responded on May 24, 2017, stating:
The payroll report I sent to you is indeed dated 01/06/2017. If you look in the bottom right corner of each page, it clearly states it is for the payroll period ending 12/31/2016, which would be the last payroll for the 2016 calendar year.
In regards to the redactions made in the far right column for select employees, that information was regarding employee voluntary payroll deductions, and that information is exempt from the Open Records Act.
Burch initiated this appeal on June 6, 2017. Burch included other payroll samples, and argued that:
The additional ADP report page samples included . . . clearly demonstrate that ADP payroll reporting is structured on calendar year cash basis accounting. These reports reflect when payments are actually delivered (cash basis) and not when the obligation to pay accrued. . . .
The last payroll pay date of the calendar year always falls within the calendar year itself using the cash basis. . . .
. . . .
On the other hand, the report Richards provided for pay date 1/6/2017 only shows Mr. [sic] Richards' single week gross pay of $ 2080.05 for "Week 1" of 2017. This is not the requested payroll report for Week 52 of 2016.
West Buechel responded to the appeal on July 10, 2017, stating:
The City truly believed that Mr. Burch was requesting the final payroll for the year 2016. Therefore, they sent Mr. Burch the payroll records for 1/6/2017, which were for the period ending 12/30/2016.
. . . A copy of this letter is being mailed to Mr. Burch, along with the payroll records for pay date of 12/30/2016.
West Buechel further argued that "voluntary payroll deductions (such as child support, bankruptcy payments, etc.) . . . are exempt from the Open Records Act. "
40 KAR 1:030 § 6 provides that "if the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." West Buechel has stated that it has provided the payroll records for pay date of 12/30/2016. Accordingly, the appeal is moot as to the request for those documents specifically.
Regarding voluntary payroll deductions, 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." "An employee's payroll deductions are exempt from disclosure to others under KRS 61.878(1)(a)." 07-ORD-056. However, "vacation and sick leave, and time cards must be disclosed; the public's right to know is superior to his minimal privacy interest." 09-ORD-167. The record before us is unclear as to whether payroll deductions or vacation and sick leave time were redacted. If West Buechel redacted any vacation or sick leave time from payroll records, it violated the Open Records Act, and should provide payroll records without that information redacted.
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. Under 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.