Request By:
Clinton H. Newman II
Assistant State Treasurer
Capitol Annex Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General concerning the Open Records Law, KRS 61.870 to 61.884. You state the following facts:
"Certain salesmen have recently visited the Kentucky State Treasurer's Office and asked to inspect payroll vouchers of the University of Kentucky. The vouchers were furnished to the salesmen, thinking that these documents were public records. The salesmen used these documents to find out which University of Kentucky employees have been investing in tax sheltered annuities. The salesmen then contacted these employees to attempt to sell them some type of tax sheltered annuities.
The University of Kentucky employees have complained that this information should not have been made available to the salesmen. Therefore, we are writing your office in an attempt to receive some direction on this matter."
First we would point out that the State Treasurer's Office was correct in thinking that payroll vouchers are public records. They are covered by the description of "public records" in KRS 61.870(2).
The statute mandates that all public records must be made available for public inspection by any person unless they are excluded from the mandatory requirement by KRS 61.878(1). It is further provided that if a public record contains a mixture of material, some of which is exempt and some which is not, the public agency shall separate the exempted and make the non-exempted material available for examination. KRS 61.878(3).
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:
"The public is entitled to know the name, position, work station and salary of state employees. These are matters in which the public has an interest since state employees are carrying on the public's business at public expense. However, a state employee is entitled to privacy as to his personal life, including his home address." OAG 76-717.
We have not specifically heretofore dealt with the question of payroll vouchers of public employees.
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 by KRS 61.878(1)(a) which reads as follows:
"Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
The exemptions from mandatory disclosure provided by KRS 61.878(1) are permissive and no law is violated when exempted material is made accessible to the public. A public agency, however, has the right, as a matter of policy, to refuse access to exempted material and may separate exempted material from the non-exempted. It is our opinion that information about deductions for tax sheltered annuities is exempt from mandatory public disclosure and can legally be withheld from the public.
Since a public agency is required to make records available for inspection without regard to the purpose for which the requester wants to see the record, an agency should have a definite policy as to when it will invoke one or more of the exemptions in KRS 61.878(1). In other words, the exemption should be invoked according to the nature of the record and not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection.