Request By:
Mr. Jack C. Blanton
Vice Chancellor for Administration
110 Administration Building
University of Kentucky
Lexington, Kentucky 40506
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Davy Jones, an Associate Professor at the University of Kentucky, has appealed to the Attorney General pursuant to KRS 61.880 your denial of his May 6, 1991, request to inspect certain documents in the possession of the University. Those records are identified as Mr. Jones's department chairman's recommendation on his salary change for the 1991-92 fiscal year, and records subsequently generated at the college, sector and university level pertaining to his salary. Mr. Jones specifically requested access to "the PBS and salary proposal edit list by account page and the PBS and salary proposal edit list by sector by dept. by account page."
You denied Mr. Jones's request in a letter dated May 9, 1991, relying on KRS 61.878(1)(g) and (h). You advised Mr. Jones that the requested information would be considered "'preliminary drafts, notes . . . other than correspondence which is intended to give notice of final action of a public agency;' and 'preliminary recommendations . . . in which opinions are expressed or policies formulated or recommended' . . . [until such time as] the Board of Trustees takes final action on the University's budget." You further indicated that the documents would be available for inspection after the Board takes final action.
In his letter of appeal to this Office, Mr. Jones expresses the belief that you have adopted an inconsistent position in arguing that the records are both preliminary and nonexempt. In addition, he maintains that KRS 61.878(3) mandates the release of the records. He asks that we review the University's denial of his request to determine if this decision is consistent with the Open records Act.
OPINION OF THE ATTORNEY GENERAL
This Office has taken the position that salary recommendations are exempt from inspection under KRS 61.878(1)(h) until such time as they are acted upon and adopted by a governing board, OAG 79-469, OAG 91-78, and we find those opinions to be dispostive of the present appeal. Although Mr. Jones is an employee of the University of Kentucky, and is therefore an employee of the state, we do not believe that he is entitled to inspect and copy any record that relates to him pursuant to KRS 61.878(3).
KRS 61.878(3) provides, in part, that none of the exemptions codified in KRS 61.878(1)(a) through (j):
[S]hall be construed to deny, abridge or impede the right of a state employee . . . to inspect and to copy any record including preliminary and other supporting documentation that relates to him. Such records shall include, but not be limited to, work plans, job performance, demotions, evaluations, promotions, compensation, classification, reallocation, transfers, layoffs, disciplinary actions, examination scores and preliminary and other supporting documentation.
This provision has been interpreted to mandate disclosure of otherwise exempt documents to state personnel employed by the executive branch of state government. OAG 87-50; OAG 90-83. It was enacted by the Kentucky General Assembly in 1986 along with a comprehensive revision to the state personnel laws contained in Chapter 18A of the Kentucky Revised Statutes. As we noted in OAG 87-50, at page 3:
No doubt [the requester] could not have seen such preliminary material prior to the 1986 amendment to KRS 61.878 but the statutory amendment specifically states that it overrides any of the exceptions to public inspection set forth in KRS 61.878, at least where a state employee is involved.
However, we are not bound by this provision.
In OAG 91-128 (copy enclosed), we analyzed at some lenght the applicability of KRS 61.878(3) to state employees not employed by the executive branch and concluded that the provision does not apply. There, as here, the University is not precluded from asserting a valid exception to authorize nondisclosure of exempt records. We find that opinion to be dispositive of the instant appeal. Accordingly, we conclude that the University properly withheld the requested documents pursuant to KRS 61.878(1)(g) and (h).
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Davy Jones. Mr. Jones may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).