Opinion
Opinion By: Albert B. Chandler III,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Olive Hill violated the Open Records Act in the disposition of Dorothy Lee's October 8, 2002, request for financial and operational records of the city. For the reasons that follow, we find that although the city provided Ms. Lee with some records that were arguably responsive to her earlier oral or otherwise undocumented requests, its failure to make full disclosure of the records identified in her October 8 request constituted a violation of the Act.
On October 8, Ms. Lee requested access to:
1. The salary package for each city employee including such items as: a) name; b) position; c) salary/ wage; d) amount paid by the city for their retirement; f) vehicle provide[d] by the city for going to work station and home; g) work clothes or uniform provided; h) life insurance premium; i) any other fringe benefit paid for by the city(;)
2. A copy of the city workers health insurance policy(;)
3. List of attorneys employed by the city along with attorney fees and the amount paid each for the years 2000, 2001, and 2002.
In August 2002, Ms. Lee orally requested the same records from the city clerk, but was advised that the clerk required additional time to compile the records. Having heard nothing further, Ms. Lee submitted a written request for the records on September 9, 2002, but failed to retain a copy of that request.
On September 11, 2002, Olive Hill City Clerk/ Treasurer Cheri James provided Ms. Lee with "the vendor history records [Ms. Lee] requested," and indicated that she had forwarded a copy of Ms. Lee's request to the city attorney seeking "authorization to release any . . . information in order to avoid any confidentiality breech [sic]." At a subsequent council meeting, council member Kenny Fankell submitted a similar written request, and sometime thereafter he and Ms. Lee received a document captioned "City Employees Earnings/ Benefits" listing forty-nine employees by job title and wage per hour, listing four categories of health insurance coverage and the amounts paid for each, and listing the employee and city's separate contributions toward retirement by percentage. No employee was identified by name. Mr. Fankell and Ms. Lee also received a document captioned "Attorney List" that contained the names of three attorneys and one law firm, and a single figure representing the "Total: $ 9,772.55."
Dissatisfied with the city's response, Ms. Lee submitted the written request, referenced above, on October 8. Despite continuing efforts to obtain responsive records through the month of October, Ms. Lee received nothing further, but was advised that she could obtain a copy of the health insurance information from Donnie Lykins, the city's insurance agent. Her efforts to obtain these records also proved unsuccessful, and on October 30 she initiated this open records appeal.
On November 7, 2002, Olive Hill City Attorney Maxwell L. Hammond, III, responded to this office's notification of receipt of Ms. Lee's appeal. He asserted that "although her appeal is vague as to the relief actually being requested, the city has substantially complied with the request pursuant to Item 2 and Item 3 that were attached to [her] appeal." Mr. Hammond reiterated that Mr. Lykins had been given permission by the city to furnish Ms. Lee with insurance information. On November 29, Ms. Lee advised this office, in writing and with copies distributed to Mr. Hammond, Ms. James, and Mr. Lykins, that the records with which she had been provided were incomplete and that she had still not received a copy of the health insurance plan from Mr. Lykins.
While we agree that Ms. Lee's request was at least in part improperly framed as a request for information, as opposed to a request for existing public records, we do not agree with the City of Olive Hill that her "appeal is vague as to the relief actually being sought." The relief Ms. Lee seeks is access to records containing the information she requested consisting of the names and salaries of all persons employed by the city, along with the specific benefits they receive (including city vehicles and/or uniforms) as opposed to a generic listing by job description and hourly wage which the city apparently generated in response to her request. In addition, she seeks access to records reflecting contracts with, and payments to, attorneys hired by the City of Olive Hill for the past three years as opposed to a generic listing that does not indicate the amounts paid to which attorneys on which dates. Finally, she seeks access to a copy of the health care policy that is provided by the city to its employees.
To begin, Ms. Lee's request consists of both properly framed requests for records, such as the city workers' health insurance policy, and improperly framed requests for information, such as the names of, and amounts paid to, attorneys employed by the city for a three-year period. In the latter case, it is unlikely that a single document existed prior to her request that was responsive thereto. Nevertheless, the city no doubt maintains records, such as contracts, billing statements, and cancelled checks, containing the information requested.
So, too, it is unlikely that a single document existed prior to Ms. Lee's request that contained the name, position, salary, retirement contribution, insurance contribution, and "other fringe benefits" of any city employee. Nevertheless, the city no doubt maintains records, such as the city payroll records, reflecting the names, positions, and salaries of city employees, and payroll check stubs reflecting the city's retirement and insurance contributions in a given pay period, as well as city vehicle and other inventories reflecting the names of employees to whom vehicles and uniforms are assigned.
The city did not deny Ms. Lee's request on the basis that it was a request for information, but instead went beyond its statutory duty in creating a list that provided part of the information Ms. Lee requested. We believe that the Open Records Act instead required the city to afford her access to redacted copies of the records containing the information she seeks.
In general, records containing the information to which Ms. Lee requested access can be characterized as the city's financial and operational records. The Attorney General has consistently recognized that such records must be made available for public inspection. See, e.g., OAG 76-648, p. 2 (holding that "wherever public funds go, public interest follows"); OAG 82-169, p. 3 (holding that "the contracts, vouchers, and other business records of a public agency are open to public inspection under the Kentucky Open Records Law"); OAG 90-30, p. 3 (holding that "amounts paid from public coffers are perhaps uniquely of public concern"); OAG 91-7, p. 3 (holding that "records of bills paid, payroll check stubs or cancelled checks, and all other records which show funds received and disbursed are public records" ). Among the numerous items of information requested by Ms. Lee, we are unable to identify any which would not be subject to disclosure if contained in one or more existing records. This position finds support in numerous decisions of this office. For example, in OAG 89-81, the requester sought a broad range of records relating to fiscal assets, receipts, and expenditures of the city. This office found that the city failed to act consistently with the Open Records Act in denying the request, and concluded that although city employees were not required to compile or explain records, they were required to make records reflecting this information available for inspection "where there is a reasonable description of [the] records sought." OAG 89-81, p. 1. Elaborating on this position, we observed:
Open Records provisions were not intended to serve as a comprehensive audit tool, or as a means of commanding compilation and production of specific information. Open Records provisions are intended to provide for inspection of reasonably described records held by public agencies.
OAG 89-81, p. 5. We acknowledged that the request covered a broad range of records, but found that it described, with reasonable particularity, categories of records the requester wished to inspect, and that those records are "of generally recognized public recordation subject to public scrutiny . . . ." OAG 89-81, p. 4. For this reason, we held that the city must make a good faith effort to make available to the requester records containing the information he sought, though inspection might "require days, or perhaps weeks." OAG 89-81, p. 4. "Unreasonable restrictions on inspection, " we concluded, "may not be imposed." OAG 89-81, p. 4, citing OAG 80-641.
In a subsequent opinion, even more directly on point, this office was asked to review a county clerk's denial of a request for information consisting of the salaries of deputy clerks and their individual travel expense amounts for a ten-year period. Holding that the clerk's denial was inconsistent with the Open Records Act, we observed:
In the instant case, a request was made for certain "information." Kentucky's Open Records provisions are not intended to provide a requester with particular "information," nor to require public agencies to compile information to conform to the parameters of a given request . . . . Kentucky's Open Records provisions do provide for inspection of reasonably identified records, unless exceptions are taken pursuant to specific statutory provisions. The request here, technically, appears to be a request for specific information to be provided, rather than a request to inspect reasonably described records. Taken literally, the request asks that salary and travel expense information be compiled for each of the calendar years 1978 through 1988. While the request here involved is one for information, rather than to inspect records, and thus does not technically conform to Open Records provisions, we believe the proper response was for [the agency] to promptly respond in writing to the request. [The agency's] response should have stated that while Open Records provisions did not require a public agency to compile information, records that might yield the information sought would be made available for inspection during normal office hours. Parts of records withheld, such as the home address of an employee, or a social security number, should have been explained in a manner consistent with KRS 61.880.
OAG 90-19, p. 3.
Finally, in 97-ORD-6, the Attorney General held that "while it is certainly true that public agencies are not required to compile information to satisfy [a request for information], we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (emphasis in original). In support of our position, we cited an early open records opinion in which this office noted that if a requester cannot identify the records he wishes to inspect with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " OAG 76-375, p. 3. Echoing this view, at page 5 of OAG 89-61, we held that "one desiring that lists be made, or that broad categories of information be provided, must expend their own time digging the information out unless it has already been compiled. "
As noted, portions of those records Ms. Lee requested may properly be redacted on the basis of KRS 61.878(4) and one or more of the exceptions authorizing nondisclosure. KRS 61.878(4) thus provides:
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.
With respect to records containing personal information relating to public employees, this office has long recognized that KRS 61.878(1)(a), the personal privacy exception, authorizes nondisclosure of "matters unrelated to the performance of public employment." OAG 78-133 cited in 97-ORD-66. This includes the employee's home address and social security number, but does not include the employee's name, position, work station and salary. 97-ORD-66. If the city elects to make disclosure of the information Ms. Lee seeks by permitting her to inspect copies of paychecks, the city may redact amounts withheld for taxes, garnishments, and savings on the basis of KRS 61.878(1)(a). OAG 88-13; 96-ORD-258.
With respect to records reflecting the identities of attorneys hired by the city, and amounts paid to them in the past three years, we find that the city must disclose contracts and billing records. OAG 82-169; OAG 85-91; OAG 92-14; 95-ORD-18, 98-ORD-17. On this issue, the Attorney General has observed:
There can be little doubt that the public is entitled to review the contracts, vouchers, and other business records of a public agency as a means of insuring agency accountability. We recognized this principle in OAG 82-169 and OAG 85-91, where we expressly held that the records of payments made to attorneys, and bills and statements submitted to an agency by its attorneys, should be made available for public inspection. We believe that that opinion, coupled with the authorities cited above, mandate release of the monthly statements prepared by the city's attorneys which reflect the general nature of the legal services rendered. Should those invoices disclose substantive matters protected by the attorney client privilege [KRE 503] and exempt under KRS 61.878(1)[(l)] the exempt material should be separated from the non-exempt materials, and the nonexempt materials released for public inspection.
OAG 92-14, p. 4, cited in 98-ORD-17.
Finally, we find that if the city maintains a copy of the insurance policy for city workers, it should provide Ms. Lee with a copy notwithstanding the fact that a copy of that record might also be obtained from Mr. Lykins. As this office noted in OAG 91-21, "there is no specific exception in the Open Records Act that authorizes a public agency to withhold public records because access to the records may be obtained from another . . . agency, even if the requested records might more appropriately or more easily be obtained from the other agency."
In closing, we note that only one of Ms. Lee's requests appears to have been responded to as required by KRS 61.880(1). That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Although Ms. James responded in writing to Ms. Lee's September 9, 2002, request, the record before us does not reflect that she responded to her October 8 request, or her August 2002 verbal request, as required by KRS 61.880(1). We urge the City of Olive Hill to review the cited provision to insure that future responses conform to the Open Records Act.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Dorothy LeeP.O. Box 124Olive Hill, KY 41164
Cheri James, City Clerk City of Olive HillP.O. Box 1660Olive Hill, KY 41164
Maxwell L. Hammond IIAttorney at Law200 West Main StreetGrayson, KY 42114