Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Larue County Board of Education violated the Kentucky Open Records Act in denying the request of Linda Ireland, Editor of The LaRue County Herald News, to receive a copy of "the list of individual salaries by name" of its employees. In keeping with a line of decisions dating back to 1976, this office concludes that Ms. Ireland is entitled to receive a copy of any existing record which is responsive to her request; the requested information is not exempt from public inspection by virtue of KRS 61.878(1)(a).
Following a series of exchanges via electronic mail with various employees at the Central Office, including Superintendent Sam Sanders, between March 21, 2006, and March 29, 2006, Ms. Ireland submitted a "formal open records request for the list of individual salaries by name" to Mr. Sanders on March 29, 2006. As observed by Ms. Ireland:
In two of the last three legislative sessions, the General Assembly has included in the state budget language that allows school districts to publish their financial statements in the newspaper or on the district's Web site or by placing a copy in the local public library's main branch.
One of the requirements in KRS 424.220 is that school districts must, at the time the financial statement is made public, mail a copy of all school employee salaries to the newspaper in the county and the newspaper may by law use that information for a news story.
[As quoted by Ms. Ireland,] Paragraph (4) of KRS 424.220 states:
The local board of education [and the fiscal court] shall have accessible a factual list of individual salaries for public scrutiny and the local board [and the fiscal court] shall furnish by mail a factual list of individual salaries of its employees to a newspaper qualified under KRS 424.120 to publish advertisements for the district, which newspaper may then publish as a news item the individual salaries of school [or county] employees.[] 1
We have requested this information from you three times and have not received the list of individual salaries.
We found the following information on the Kentucky School Board Association Web site in the November 2003 issue of "Legal Considerations:"
Q. Are employ[ees'] salaries really open to public inspection?
A. This question arises sometimes when a local newspaper requests a list of employees and their salaries. According to KRS 424.220(4), each district is required to have accessible for public inspection a factual list of individual salaries. The provision includes access by local newspapers. The Attorney General has consistently held that the public may have access to the name, position, workstation, and salary of public employees, OAG 76-717.
Prior to this formal request, Mr. Sanders advised Kay Bryant, Finance Director, to release "the lump sum data by category" to Melissa Nalley, General Manager/Advertising Manager, in response to her electronic inquiry, at the recommendation of Jim Whitlow, Board Attorney. Having received no further response, Ms. Ireland initiated this appeal on behalf of The LaRue County Herald News by letter dated April 5, 2006. According to Ms. Ireland, "[i]ncorrect information was furnished twice, once with the names removed, a second time with only lump sums, as would be found in a financial statement. " Enclosed with Ms. Ireland's appeal are copies of the referenced e-mails. To date, The LaRue County Herald News has "not heard from the school district that more time [is] needed or received the information." Accordingly, Ms. Ireland requests a decision "that requires the school district to supply [The News] with the information."
On April 10, 2006, this office issued a "Notification to Agency of Receipt of Open Records Appeal," to Mr. Sanders and Mr. Whitlow, advising both that any response on behalf of the Board "must be received no later than Friday, April 14, 2006"; this office has not received a response as of this date. Because the Board did not initially respond in accordance with KRS 61.880(1), nor did the Board so respond upon receipt of Ms. Ireland's written request, the Board necessarily failed to meet the burden of proof imposed upon public agencies pursuant to KRS 61.880(2)(c). With respect to this procedural issue, the reasoning contained in 06-ORD-006, pp. 4-5, is determinative; a bare assertion relative to the basis for denial does not suffice. Id., p. 5 (citation omitted).
Turning to the substantive issue presented, this office finds that 04-ORD-141, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. As correctly observed by Ms. Ireland, the Attorney General has consistently held that information of the type requested does not fall within the parameters of KRS 61.878(1)(a) since the General Assembly enacted the Open Records Act in 1976; the instant appeal presents no reason to depart from this position. In sum, the Board violated the Open Records Act in failing to provide Ms. Ireland with a copy of any existing record which is responsive to her request after redacting any exempt information in accordance with KRS 61.878(4).
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.
Footnotes
Footnotes
1 KRS 424.220(4) begins with the following language:
The amount of salaries paid to all teachers shall be shown as a lump-sum instructional expenditure for the school district and not by amount paid to individual members. The amount of salaries paid to all other employees of the board shall be shown as lump-sum expenditures by category, including but not limited to administrative, maintenance, transportation, and food service. . . .
Although the parties differ in their interpretation of this provision, resolution of this appeal does not turn on the application of KRS 424.220(4), which merely imposes a reporting requirement that is consistent with the letter and spirit of the Act. To the contrary, KRS 61.880(2)(a) limits the scope of our review to the narrow question of whether the Board complied with the provisions of the Open Records Act; further analysis of this issue is therefore unwarranted.