Opinion
Opinion By: Daniel Cameron, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
Northern Kentucky Mental Health Mental Retardation Regional Board, Inc. d/b/a NorthKey Community Care ("Appellant") requested records containing specific and comprehensive information about its current and former employees who were participants in the Non-Hazardous Kentucky Employees Retirement System. 1The Appellant stated that it wished to use this information to contest the Authority's finding that the Appellant owed a certain amount in unfunded liability based on its employees' participation in the retirement system. The Authority denied the request under KRS 61.661(1)(a), explaining that the Appellant had requested specific data about retirement system members, which is confidential. This appeal followed.
KRS 61.878(1)(l) exempts from disclosure records or information made confidential by an act of the General Assembly. Under KRS 61.661(1)(a), the General Assembly has provided that "[e]ach current, former, or retired member's account shall be administered in a confidential manner, and specific data regarding a current, former, or retired member shall not be released for publication," except in three circumstances. First, "[t]he member or recipient may authorize the release of his or her account information." KRS 61.661(1)(a)1. Second, the Authority "may release account information to the employer or to other state and federal agencies as it deems necessary or in response to a lawful subpoena or order issued by a court of law." KRS 61.661(1)(a)2. And third, the Authority must release certain categories of information about current or former legislators "[u]pon request by any person." KRS 61.661(1)(a)3.
The Appellant does not dispute that the information it requested is "specific data" about individual members' retirement accounts. However, the Appellant argues that the records are not confidential because the Appellant is not requesting the information "for publication." Thus, the Appellant claims that the phrase "released for publication" means that member information may be released to any member of the public for any purpose, unless the requester intends to publish the information. 2Such an interpretation, however, would render each of the three exceptions to KRS 61.661(1)(a) meaningless. For example, if the General Assembly intended for any member of the public to access this information so long as he does not publish it, why would the General Assembly permit the Authority to deny an employer's request for such information when the employer has not first obtained a subpoena? See KRS 61.661(1)(a)2. 3Simply put, under KRS 61.661(1)(a) this information is confidential unless one of three specifically enumerated exceptions applies. None of them applies here. Thus, the Authority did not violate the Act when it denied the Appellant's request for this information.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.
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