Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Bullitt County Public School District properly relied on KRS 61.878(1)(a) and (j) in partially denying public employee Paula Ratliff and her colleagues' January 12, 2010, request for records relating to "the payroll mistakes and the disciplinary or corrective actions taken toward the employee responsible for said mistake." We find that the District properly relied on KRS 61.878(1)(a) in redacting those portions of responsive payroll records disclosing deductions, but that the District's reliance on KRS 61.878(1)(j) to withhold records relating to the payroll mistake was partially misplaced.
Ms. Ratliff and three of her colleagues, all employees of the Bullitt County Adult and Community Education Program, requested access to records dealing with the payroll mistake that resulted in decreases in their salaries, focusing on emails and memoranda exchanged by Denise Smith, Jenny Bieckert, Nick Low, Jim Boswell, Greg Schultz, Keith Davis, Tera West "and any other Kentuckiana Works Staff." Additionally, they requested access to records relating to sixteen named employees and records reflecting the effective date of Workplace Coordinator Becky Todd's promotion.
The District honored, in large part, the request submitted by Ms. Ratliff and her colleagues, providing her with some 300 documents but denied access to "any emails or memoranda which contain preliminary recommendations or preliminary memoranda in which opinions are expressed or policies formulated or recommended which were not incorporated into the final action taken by [Finance Director Denise] Smith pursuant to KRS 61.878(1)(j)." The District also denied Ms. Ratliff and her colleagues' request for disciplinary records relating to the employee who made the payroll mistake, explaining that no disciplinary action was taken, and her request for promotional records relating to Ms. Todd, explaining that no such records exist. Finally, the Board indicated that payroll records would be released after information relating to deductions was redacted, asserting that the information was private and "excluded from disclosure pursuant to KRS 61.878(1)(a)."
In supplemental correspondence directed to this office, Bullitt County Board of Education attorney Eric G. Farris provided the following background information:
The Bullitt County Public Schools' Finance Department learned of an error in salary payments under the Kentucky Department for Adult Education and Literacy, Jobs for Adult Graduates (JAG) Program. This is a state grant program which funds local salaries and expenses under that specific designation. Overpayment, for whatever reason, regardless of who may be at fault, must be recovered under this and other school salaried programs. The recovery of these funds was coordinated by Bullitt County Public Schools Finance Director, Denise Smith, through an arrangement to deduct the overpayments over a series of months rather than in one or two deductions, so as to lessen the burden on the affected employees.
With reference to the "emails, memoranda, etc." the District withheld, Mr. Farris explained that "these preliminary recommendations and memoranda did not include information directly relating to any of the four employees who were seeking records . . ., but rather related to the error in general." He reaffirmed the propriety of the District's reliance on KRS 61.878(1)(a) to withhold "specific individual deduction data."
Upon request, 1 the District provided the Attorney General with the disputed "emails, memoranda, etc." and "one redacted and one unredacted copy of the same payroll record" for in camera inspection. In response to our inquiry concerning Becky Todd's status, the District explained that Ms. Todd "was not promoted [but instead] took a lateral move to a different position at the same hourly rate of pay." 2
The District did not violate the Open Records Act in redacting information relating to deductions 3 before releasing payroll records to Ms. Ratliff and her colleagues (see, e.g., 02-ORD-232, copy enclosed) , 4 and in denying their request for nonexistent records relating to employee discipline because no employee was disciplined for the error (see, e.g., 07-ORD-234, copy enclosed. ) Although the District provided the requesters with 300 pages of responsive records, its denial of their requests for email and memoranda relating to the payroll error on the basis of KRS 61.878(1)(j) was improper with respect to those emails that did, in fact, "include information directly relating to . . . the four employees" and not to "the error in general."
Our review of the disputed records establishes that the following emails were improperly withheld, KRS 61.878(1)(j) notwithstanding:
. December 29, 2009, email from Finance Director Denise Smith to Greg Schultz, copied to Becky Sexton and Jennifer Wooley, the subject of which was "Adult Ed;"
. January 7, 2010, email and attachments from Jenny Bieckert to Denise Smith, copied to Greg Schultz and Jim Boswell, the subject to which was "JAG-WIA Reconciliation."
Each of these emails directly or indirectly relates to Ms. Ratliff and her colleagues. In light of KRS 61.878(3), the District cannot withhold them even if they qualify for exclusion per KRS 61.878(1)(j) as to the public generally.
KRS 61.878(3) states that none of the exceptions to the Open Records Act "shall be construed to deny, abridge, or impede the right of a public agency employee, . . . an applicant for employment, or an eligible on a register to inspect and to copy any record including preliminary and other supporting documentation that relates to him." This provision has been described, on numerous occasions, as "the exception to the exceptions" and endows public agency employees with a broader right of access to records relating to them than the public's right of access to the same records. Accord, 93-ORD-19; 95-ORD-97; 98-ORD-114; 05-ORD-118. Records which would otherwise enjoy protection from public inspection as preliminary recommendations or memoranda in which opinions are expressed pursuant to KRS 61.878(1)(j), must be made available to public employees if those records relate to them.
It is undisputed that Ms. Ratliff and her colleagues are public agency employees within the meaning of KRS 61.878(3). That statute expressly authorizes these requesters to inspect and copy the December 29, 2009, and January 7, 2010, emails described above regardless of whether they forfeited their preliminary characterization upon adoption by the District as part of its final action in this matter. So, too, they enjoy the right to inspect and copy the January 8, 2010, email and attachment from Jenny Bieckert to Denise Smith, Jim Boswell, and Nick Low, the subject of which was "Book1.xlsx," if the proposal contained therein was adopted as the basis of final action relative to the remaining employee whose salary was erroneously calculated but who did not join in their open records request. Although the January 8 email does not directly relate to the requesters, within the meaning of KRS 61.878(3), it is clearly responsive to their request and not shielded from disclosure by KRS 61.878(1)(j) if the District implemented the proposal as part of its final action. This position finds support in a line of opinions issued by the courts from 1982 to the present. See,
City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. 1982);
Baker v. Jones, 193 S.W.3d 749 (Ky. App. 2006); 08-ORD-210 and authority cited therein (copy enclosed) .
The single document that remains in dispute is the document reflecting the effective date on which Becky Todd assumed the position of Workplace Coordinator. Ms. Ratliff acknowledges that she and her colleagues may have erroneously referred to Ms. Todd's position change as a promotion rather than a transfer. Regardless of the nomenclature employed, the requesters are entitled to a copy of any existing record that reflects the effective date of that position change. As Kentucky's highest court has observed, a request satisfies the requirements of the Open Records Act if it is "adequate for a reasonable person to ascertain [its] nature and scope . . . ."
Commonwealth v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008). In so opining, the court expressed its agreement with the District Court of Rhode Island's "astute holding" that an open records request:
should not require the specificity and cunning of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government. A citizen should be able to submit a brief and simple request for the government to make full disclosure or openly assert its reasons for nondisclosure.
Chestnut at 662 citing
Providence Journal Co. v. Federal Bureau of Investigation, 460 F.Supp 778, 792 (D.R.I. 1978), reversed on other grounds on appeal, 602 F.2d 1010 (1st Cir. 1979). As we have in the past, we too endorse this "astute holding." 95-ORD-49; 03-ORD-012. The District is obligated to produce for Ms. Ratliff and her colleagues any existing public record reflecting the effective date of Ms. Todd's transfer.
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.
Paula RatliffKeith DavisEric G. Farris
Footnotes
Footnotes
1 KRS 61.880(2)(c)( authorizes the Attorney General to obtain "additional documentation from the agency for substantiation," including "a copy of the records involved" for in camera inspection.
2 In an email sent to this office on February 24, 2010, Ms. Ratliff acknowledged that the term "promotion" may have been inaccurate. She explained that Ms. Todd "was transferred/promoted on approximately December 7, 2009, to a position titled Workplace Coordinator" and that she had previously held the position of Coordinator II.
3 We assume that the deductions to which the District referred are unrelated to the deductions for overpayment necessitated by the payroll mistake at issue in this appeal. Deductions for overpayment necessitated by the mistake do not, in our view, enjoy protection since they do not constitute "personal information."
4 By apparent inadvertent omission, the District failed to provide the requesters with copies of Jim Boswell's timesheets per their January 12, 2010, request. The District should make immediate arrangements for disclosure of these records to Ms. Ratliff and her colleagues.