07-ORD-102 | KOGC

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 Kentucky Judicial Form Retirement System violated the Kentucky Open Records Act in denying the request of Brandon Ortiz, Court Reporter, Lexington Herald-Leader, for a "list of former and current senior status judges that includes their pension benefit and nonjudicial service credits, which can either be purchased or transferred into the Judicial Retirement Plan under KRS 21.370." Because the Herald-Leader currently possesses the name, date of birth, judicial service, and final compensation for each member of the Senior Status Program for Special Judges, disclosure of the pension benefit and nonjudicial service credits would enable the Herald-Leader to identify the members by name and benefit thereby defeating the purpose for which KRS 61.878(2) was enacted; in other words, releasing the information requested would be tantamount to releasing information expressly protected by KRS 61.661(1) and 99-ORD-209. Although the requested information is not "descriptive of any readily identifiable person" standing alone, when viewed in aggregate, the information would render the members "readily identifiable, " unlike the students whose disciplinary records were being sought in Hardin County Schools v. Foster, Ky., 40 S.W.3d 865 (2001); to hold otherwise would elevate form over substance.

In a letter directed to Donna S. Early, Executive Director, on February 5, 2007, Mr. Ortiz made the aforementioned request, authorizing the JFRS "to redact the names of judges from the list" if the JFRS believed honoring the request would violate the judges' privacy. "It is the Herald-Leader's position that the JFRS must disclose information about the program which is not of a personal nature." In reference to 99-ORD-209, "which the JFRS has cited previously to deny similar requests," Mr. Ortiz correctly noted it "recognizes a 'significant public interest' in the disclosure of information which will permit a determination of how well the JFRS is executing its function (the administration of the judicial retirement system)." Such a determination would "necessarily include an inquiry into whether the JFRS has accurately represented the total cost of the senior status program to the public and to the legislature." Ms. Early's "stated reason for denying a verbal request for the redacted records - that the Herald-Leader intends to publish them and that will somehow mislead the public - has no legal basis." In Mr. Ortiz's view, the Herald-Leader's purpose in requesting the information "(much less the agency's speculation as to conclusions that the Herald-Leader may or may not draw) is not relevant to the determination of whether disclosure is required under the Open Records Act. " Moreover, the JFRS bears the burden of establishing that KRS 61.878(1)(a) 1 applies here as correctly asserted by Mr. Ortiz; withholding a portion of the records "does not preclude releasing the remaining portions." KRS 61.878(4).

In a timely written response, Ms. Early responded on behalf of the JFRS, asserting that Mr. Ortiz's inquiry was intended "to probe, by innuendo at least, the integrity of [the JFRS] and its procedures." 2 According to Ms. Early, the position of the JFRS is that the Open Records Act "does not pertain to, permit, or compel the particularized disclosure that is the subject" of the request. In support of this position, Ms. Early relied upon 99-ORD-209 (and KRS 61.880(5)(b), according to which that decision "has the force and effect of law" since an appeal was not filed within thirty days). As with members of the Kentucky Retirement System, the Attorney General has recognized that members of the JFRS "have a privacy interest in their retirement benefits." In conclusion, Ms. Early advised Mr. Ortiz that her office "is not at liberty to violate the clearly established rules that govern" its operations in order to satisfy his request; Ms. Early also emphasized to Mr. Ortiz that her "comments during our numerous conversations were made in a failed attempt to educate you on retirement funding and its relationship to certain data."

By letter dated February 16, 2007, Thomas W. Miller of Miller, Griffin & Marks, P.S.C. initiated this appeal on behalf of his client, the Herald-Leader. In his view, the foregoing denial "offers no response at all to the Herald-Leader's alternate request for a copy of the requested records with the names of participating judges redacted. " Ms. Early's failure to offer any explanation as to why the redacted information is protected from disclosure makes the denial "non-compliant with KRS 61.880(1)[.]" The Herald-Leader "does not believe that the [ORD] cited by the JFRS offers the agency any support whatsoever for its refusal to disclose the records in a redacted form." Since 99-ORD-209 "concerned a request for records about a particular judge participating in the JFRS[,]" Mr. Miller argues that it "has no relevance at all" to a request for information in response to which the JFRS is authorized to redact "the names of individual participant judges." Unlike the request for "the actual retirement pay that retired Judge Glenn McDonald is receiving" at issue in 99-ORD-209, which is "based on the privacy exemption of KRS 61.878(1)(a)," the Herald-Leader "has not requested any information which triggers KRS 61.661, [incorporated into the Open Records Act by operation of KRS 61.878(1)(l)]. 3 It does not seek records about 'each . . . member's account' or any 'specific data' regarding a current, former, or retired member." Instead, the Herald-Leader "seeks to determine the number of service credits transferred from the KERS into the JFRS, and has agreed that JFRS may redact the names of the judges who made those transfers so that the Herald-Leader will receive no personal information. " According to Mr. Miller, in denying Mr. Ortiz's request Ms. Early "has ignored the reality that the records, with the names of the members redacted, do not include any information protected from disclosure by KRS 61.661 or KRS 61.878(1)(a)."

As correctly noted by Mr. Miller, the ORD on which the JFRS relies "acknowledges the clear and underlying purpose of the Open Records Act: to ensure the disclosure of public records - even if that disclosure may cause inconvenience or embarrassment." In addition, 99-ORD-209 acknowledges "the Kentucky Supreme Court's recognition that the Act 'exhibits a general bias favoring disclosure. ' Id. ( citing Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992))." Most importantly, the decision "confirms a public interest in ensuring that the JFRS is properly performing its statutory duty of administering the judicial retirement system. The Attorney General expressly rejected the JFRS's attempt to equate the account information of its members to information about private employees[.]"

In closing, Mr. Miller reiterates that neither 99-ORD-209 nor the statute upon which the JFRS relies in denying the Herald-Leader's request applies here. Citing Zink v. Commonwealth, Department of Workers' Claims, Ky.App., 902 S.W.2d 825, 829 (1994), the Herald-Leader correctly asserts that "any analysis regarding the applicability of an exception to the Open Records Act 'does not turn on the purposes for which the request for information is made or the identity of the person making the request.'" To the contrary, Kentucky courts "routinely recognize that redactions of names offers agencies a method for protecting information that is truly personal while also complying with their obligations under the Act." In support of this assertion, Mr. Miller relies upon Cape Publications v. City of Louisville, Ky., 191 S.W.3d 10 (2006) (approving redaction of personal information from agency's employee evaluations); Cape Publications v. City of Louisville, Ky., 147 S.W.3d 713 (2004)(names of victims properly redacted from police incident reports concerning sexual crimes).

Upon receiving notification of the Herald-Leader's appeal from this office, James T. Gilbert responded on behalf of his client, the JFRS, reiterating Ms. Early's view that the information requested (non-judicial service credits) "is specifically protected by the provisions of 99-ORD-209." In that decision, the Attorney General "specifically held that 'exempt information relating to [the judge's] transferred service from the Kentucky Employees Retirement System . . . is protected from disclosure by KRS 61.661 and KRS 61.878(l).'" Consequently, this office concluded that "'the JFRS may redact those entries which document the years of services transferred, the years of total service, and the statutory monthly pension 'bottom line' retirement pension. '" At the time of the request, the Herald-Leader "had in its possession the names and birth dates of the senior status judges, the final compensation of such judges, the judicial service of such judges, and the service credit rates of such judges." 4 In summary, the Herald-Leader has been provided with everything requested except for that information which is protected from disclosure by 99-ORD-209 in the JFRS's view.

Unable to conclusively resolve the issue presented on the limited evidence of record, the undersigned, in accordance with KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, requested additional information from the JFRS. More specifically, this office asked Ms. Early to address the following:

1) Please explain how disclosing records containing the information requested after the names have been redacted will enable Mr. Ortiz to extrapolate the corresponding names of the former and current senior status judges; please include an example of responsive documentation for in camera review if you feel that inspection of same would be instructive.

2) Please respond to Mr. Miller's assertion that 99-ORD-209 does not apply on the facts presented but is distinguishable insofar as it concerned "a request for records about a particular judge participating in the JFRS" whose name was known as opposed to "a request for information from which the names of individual participant judges may be redacted. " Since the JFRS relies exclusively upon 99-ORD-209 as the basis for denial, please address the Herald-Leader's related contention that Mr. Ortiz "has not requested any information which triggers KRS 61.661" and will "receive no personal information" protected by KRS 61.878(1)(a) if the names of the members are redacted.

By letter dated March 27, 2007, Mr. Gilbert responded on behalf of the JFRS. In the event 99-ORD-209 "will be enforced by the Attorney General," Mr. Gilbert believes the first issue is "more properly stated" as whether the information sought will enable the Herald-Leader to determine "'exempt information relating to [the judges'] transferred service from the Kentucky Employees Retirement System . . . [which is] . . . [] protected from disclosure by KRS 61.661 and KRS 61.878(1).'" As explained by Mr. Gilbert:

Forty-two of the 52 participants in the Senior Status Program for Special Judges have purchased and/or transferred nonjudicial service credit - for some, the nonjudicial service was purchased and/or transferred in order to meet the threshold of 75; for some, the nonjudicial service was purchased in order to accumulate 27 years of governmental service credit in order to make the judge eligible for an unreduced pension in the event the judge had not yet attained his/her normal retirement age; and, for some, the nonjudicial service was purchased and/or transferred in order to maximize the Participant's benefit.

In order to participate in the Program, a judge's age when added to his service credit (judicial and nonjudicial credited in the Plan) must equal or exceed the number 75. The [ Herald-Leader ] has the name, date of birth, judicial service and final compensation for each participant in the Program. It is then relatively easy to determine if the participant has met the threshold by adding the judge's age and judicial service, and if the judge has not met the threshold, to determine the nonjudicial service credit necessary to meet the threshold.

By way of example, one of the current judges in the Program was 59 years of age and had eight years of judicial service when electing to participate - eight years short of meeting the threshold. By deduction, the [ Herald-Leader ] could assume that this individual had to have accumulated at least eight years of nonjudicial service in order to meet the threshold. With the nonjudicial service being identified with a corresponding benefit, the [ Herald-Leader ] could then calculate the benefit based on nonjudicial service and add that to his already-calculated benefit as to judicial service to identify the judge by name and benefit.

Acknowledging it would be a more difficult application, Mr. Gilbert further indicates that a similar analysis could be made to determine "those participants under normal retirement age who transferred and/or purchased nonjudicial service to accumulate a total of 27 years of governmental service, and those participants who had less than 20 years of judicial service, but who transferred and/or purchased nonjudicial service in order to maximize their benefit."

In addressing the applicability of 99-ORD-209, Mr. Gilbert explains that several of the participants are receiving unreduced benefits in accordance with nonjudicial service accumulated in the KERS which has not been transferred. For example, "a participant of the Program with 20 or more years of judicial service is eligible for a normal benefit equal to 100% of final compensation. The benefit is unreduced if the participant is over his/her normal retirement age, or the participant has accumulated 27 years of state governmental service credit. " The Herald-Leader has the data necessary to calculate the benefit and the participant's age. "If the participant is under normal retirement age, and the entire benefit is identified, with no nonjudicial service, it is evidence that the participant has an account with the [KERS], and the amount of credit within that account can be ascertained, and that information is exempt under KRS 61.661." According to Mr. Gilbert, a participant who has transferred credit "should be treated no differently than a participant who has not transferred his/her credit." By statute, "the member of the Judicial Retirement Plan is required to pay to the Plan 100% of the liability to the Plan for the transfer and/or purchase of nonjudicial service credit. " In other words, the "calculation of the retirement benefit based on nonjudicial service credit is the same, whether the retiring judge is receiving a normal retirement benefit or a benefit by reason of participation in the Senior Status Program." Because the judge pays the entire cost of the service, "release of nonjudicial service is tantamount to accessing that judge's private Individual Retirement Account or Deferred Compensation Account." Such a disclosure is proscribed by 99-ORD-209; the information expressly protected by this decision "is precisely the information which would be available to the [ Herald-Leader ] through simple deduction if the information sought is provided."

By letter dated April 2, 2007, Elizabeth C. Woodford of Miller, Griffin & Marks replied on behalf of the Herald-Leader, objecting to Mr. Gilbert's assertion "that either the information currently in its possession, or the redacted information sought through its Open Records Act request, will allow it to ascertain the amount of credit which a participant has in any account he or she may hold with the KERS." The Herald-Leader "is not aware of any calculation that would allow it to make such a determination." To the extent such a calculation exists, Ms. Miller argues that the JFRS "does not adequately explain how it may be made." Again, the Herald-Leader "does not seek any information about specific members' accounts with KERS. Instead, the Herald-Leader seeks to determine the number of service credits transferred by participating judges (with their names redacted) from KERS into JFRS." In its view, the request implicates neither the privacy concerns which resulted in 99-ORD-209 nor the protection of KRS 61.661 or KRS 61.878(1)(a). Although the question is a close one, this office must respectfully disagree on the unique facts presented.

In Hardin County Schools v. Foster, Ky., 40 S.W.3d 865, 866 (2001), the single published opinion dealing with access to statistical information in the context of an Open Records appeal, the Kentucky Supreme Court was asked to determine "whether, and to what extent" the Hardin County Schools had to provide information derived from student disciplinary records to a newspaper; the "crucial question", as in this case, was "whether the requested information would permit identification of individual students [judges]." 5 As a preface to its analysis, the Court observed:

The Open Records Act, KRS 61.871, states in pertinent part:

The public agency that is the subject of an Open Records request, has the burden of proving that the document sought fits with an exception to the Open Records Act. KRS 61.882(3) and University of Kentucky v. Courier-Journal, Ky., 830 S.W.2d 373 (1992). The statute demonstrates a general bias favoring disclosure. See Kentucky Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 324 (1992).

Id. at 868. Turning to the question of law presented, the Court held that the Hardin County School System had not sustained this burden in denying Foster's request for statistical data relating to disciplinary actions, including the offense prompting each action and the particular school in which the offense occurred. Id. Citing KRS 61.878(2), which provides that "no exemption in [KRS 61.878(1)(a)-(l)] shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person[,]" the Court found that the statistical compilation sought "does not identify individual students and therefore is not descriptive of any readily identifiable person contemplated by the statute." Id. Elaborating upon this view, the Court reasoned:

[T]he information sought by Foster and the newspaper does not identify the names of any student nor reveal personal characteristics. The identity of the school, year of occurrence, reason for the disciplinary action and the type of action does not directly relate to any particular student. Personally identifiable information would include information that makes the identity of the student easily traceable, such as a name, address or personal characteristics.

Id. at 869. Because Foster had "requested a statistical compilation, not individual records," the Court determined that the Hardin County Schools were "required to release the records of the student disciplinary hearings without redacting the particular school and offense that appear on those records." Id.

Although this office is necessarily guided by Hardin County Schools v. Foster in resolving the instant appeal, 6 a contrary result is dictated on the facts presented. Of particular relevance here, the Court also emphasized that the Hardin County Schools "must redact all information that would reveal any personal characteristics of the student, including name or age, or information that would reasonably lead to identification of the student." Id. (Emphasis added). When viewed in conjunction with the mandatory language of KRS 61.878(2), the necessary implication of which is that statistical information which is descriptive of any readily identifiable person is prohibited, the reasoning of Hardin County Schools v. Foster weighs in favor of denying access in this unique context. Compare 04-ORD-077 (concluding that University of Louisville had failed to meet burden of proving that statistical data contained in the records at issue fell within the parameters of KRS 214.556(5) and (6) based on standard in Hardin County Schools v. Foster ). Our conclusion is further validated by 99-ORD-209, upon which the JFRS relies exclusively.

In 99-ORD-209, the Attorney General distinguished "information pertaining to that portion of Judge McDonald's pension derived from taxpayer dollars, in which the public has a legitimate interest, from purchased service credit and personal contributions, in which the public's interest is eclipsed by KRS 61.661." 7 Id., p. 4. Upon concluding that "the JFRS interprets the privacy exception codified at KRS 61.878(1)(a) too broadly," and "erred in withholding the pension computation form reflecting the period of Judge McDonald's service as a district judge and his final compensation, " this office found that "the JFRS may redact those entries which document the years of service transferred, the years of total service, the statutory monthly pension, and the 'bottom line' retirement pension. '" Id. Although a list including the specified information, when viewed in isolation, admittedly would not "reasonably lead" to identification of those judges or protected information concerning their benefits, the critical fact upon which the outcome of this appeal hinges is that Mr. Ortiz already possesses the name, date of birth, judicial service and final compensation for each member. 8 Standing alone, the list requested would not make the judges readily identifiable; however, the same could not be said if the list was viewed in aggregate with such identifiers and "personal characteristics." Hardin County Schools, supra, at 869.

On appeal, the JFRS satisfied the burden of proof imposed upon public agencies per KRS 61.880(2)(c) by explaining in detail how disclosure of the requested information would enable a requester to, in the simplest of terms, fill in the blanks through "simple deduction." While this office disagrees with his characterization of the process, the inescapable reality is that reaching a different conclusion would create the potential for abuse of KRS 61.878(2) insofar as a single requester could make a series of requests for one or two statistics, or a group of requesters could request one or two statistics, and collectively, the results would be descriptive of a readily identifiable person thereby defeating the purpose of this provision. 9 Because the instant appeal presents no reason to depart from governing precedent, namely, 99-ORD-209, this office affirms the denial by the JFRS in accordance with KRS 61.661(1) and that decision.

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.

Thomas W. MillerDonna S. EarlyExecutive DirectorKentucky Judicial Form Retirement SystemWhitaker Bank Building, Suite 302305 Ann StreetFrankfort, KY 40601

James T. Gilbert

Footnotes

Footnotes

1 With regard to application of this exception as well as KRS 61.880(1), the analysis contained in 06-ORD-006, a copy of which is attached hereto and incorporated by reference, is controlling.