22-ORD-240
November 7, 2022
In re: Gaye Ballard/City of Bardstown
Summary: The City of Bardstown (“the City”) violated the Open
Records Act (“the Act”) when it withheld public records without
identifying them and explaining how a statutory exemption applies. The
City did not violate the Act when it withheld W-4 forms under KRS
61.878(1)(a) or when it did not provide records that were not clearly
within the scope of the request.
Open Records Decision
On September 15, 2022, Gaye Ballard (“Appellant”) requested the City provide
“payroll records for all elected officials by month from January 1, 2022 to present”
and “a copy of all payroll checks written to” the Mayor during the same time period.
In a timely response, the City stated it had “determined that there is one [1] payroll
record responsive to this request and available for inspection . . . that contains the
amounts paid monthly to each elected official during the requested time period.” The
City provided the Appellant with a payroll report showing each official’s gross pay by
month during 2022. In response to her request for copies of payroll checks, the City
further stated that no “checks [were] written” to the Mayor because payroll was
distributed by direct deposit, so no written checks existed. In an amended response
issued the same day, the City added that “[a]dditional records may be available that
are subject to exemption under KRS 61.878(1)(a) because they may contain
information of a personal nature such as, but not limited to, addresses, phone
numbers, social security numbers, and medical information.” This appeal followed.
Under KRS 61.880(1), a public agency denying inspection of public records
must not only cite an exception under the Act, but also give “a brief explanation of
how the exception applies to the record withheld.” An agency violates KRS 61.880(1)
when it fails to identify the record withheld and explain how a statutory exemptionapplies. See, e.g., 22-ORD-141. Here, the City stated additional records may exist and
the privacy exemption may apply to them because they may contain personal
information. The City does not state it has actually reviewed these “additional
records” because it has not identified them and determined that they do contain
exempt personal information. Therefore, the City violated the Act when it did not
adequately explain how the privacy exemption applied to the unidentified records it
withheld.
On appeal, the City claims that it possesses W-4 forms that may be responsive
to the Appellant’s request but are exempt under KRS 61.878(1)(a). KRS 61.878(1)(a)
creates an exception to the Act for “[p]ublic records containing information of a
personal nature where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.” However, the Appellant argues that the
City cannot withhold responsive records in their entirety. She argues the City must
redact exempt information and provide the remainder. See KRS 61.878(4) (“If any
public record contains material which is not excepted under this section, the public
agency shall separate the excepted and make the nonexcepted material available for
examination.”). This Office has found that W-4 forms and other records pertaining to
payroll deductions are generally exempt from disclosure under KRS 61.878(1)(a)
because the privacy interest in such information outweighs the public’s interest in
disclosure. See, e.g., 07-ORD-056; 03-ORD-141; 96-ORD-274. Because W-4 forms are
exempt from disclosure in their entirety, the City was not required to provide those
records in redacted form. Therefore, the City did not violate the Act by not providing
copies of W-4 forms to the Appellant.
With regard to her request for copies of “payroll checks written to” the Mayor,
the Appellant argues that “the records, whether prepared electronically or in physical
form should be made available for inspection.” In response, the City states the
Appellant may request copies of the Mayor’s direct deposit records, but claims that
she has not done so. The Appellant made two requests, one for “payroll records for all
elected officials” and one for “checks written to” the Mayor. Although the request for
“payroll records for all elected officials” could be construed broadly enough to include
checks or electronic deposit records for those officials, the context here suggests
otherwise, as the Appellant requested “payroll checks written” only to the Mayor.
Therefore, the City reasonably construed the request for “payroll records” as not
including checks or electronic deposits. See generally 20-ORD-153 (finding that a
public agency did not violate the Act when it reasonably misconstrued an ambiguous
request). Furthermore, “checks written” is an unambiguous term that does not, on its
face, include direct deposits. See Chestnut v. Commonwealth, 250 S.W.3d 655, 661
(Ky. 2008) (noting that a request for public records should be “adequate for a
reasonable person to ascertain [its] nature and scope”). Therefore, the City did not
violate the Act by not providing copies of the Mayor’s electronic deposit records, as
those records were not clearly within the scope of the Appellant’s request.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 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#386
Distributed to:
Ms. Gaye Ballard
Audrey L. Haydon, Esq.
Gary Little, Clerk
Ms. Lisa Burdett