Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kentucky Retirement Systems 1 did not satisfy its statutorily assigned burden of proof 2 and therefore violated the Open Records Act in denying Michael Sheliga's November 17, 2010, request for records verifying the eligibility of local officials to participate in the systems. Retirement asserts that KRS 61.661(1), requiring the administration of a current, former, or retired member's account "in a confidential manner" and extending protection from disclosure to "specific data regarding a current, former, or retired member, " preempts Attorney General review of its denial of an open records request. Alternatively, Retirement argues that disclosure of the requested records would create "a substantial likelihood of member identification. " Finally, Retirement maintains that "KRS 61.661 is unqualified about not releasing member information, even if it does not identify a specific member." We find none of these arguments persuasive.
Mr. Sheliga requested copies of "[r]ecords that would show that county magistrates in Jackson, Laurel, Lincoln, Madison, and Pulaski Counties . . . . [and] city councilmen in Berea, Brodhead, McKee, Mt. Vernon, Richmond, Stanford, and Somerset [are] . . . generally eligible for retirement benefits." He emphasized that he was not interested in records about specific magistrates or councilpersons and suggested that Retirement redact personal identifiers if the only existing records that would yield the information sought identified individual magistrates or councilpersons. He focused, instead, on the city or county represented. With specific reference to Rockcastle County, Mr. Sheliga requested "summative records" indicating the total number of magistrates elected after 1991 that have received benefits, records identifying magistrates elected after 1992 who have personally claimed they worked 100 hours or more, or, alternatively, a "summative record" containing this information, and records confirming that the magistrates actually performed 100 hours of work. Finally, Mr. Sheliga requested records explaining the process for challenging member eligibility.
On November 18, 2010, Retirement advised Mr. Sheliga that it was "precluded from making such information available . . . in accordance with KRS 61.661," prohibiting release of "records which contain information which identifies a specific member." Following a telephone exchange in which Mr. Sheliga proposed that Retirement redact identifying information, the agency notified him that "redaction would still pose a significant likelihood of disclosure" and that it was "not obligated to create or modify records, only to give [him] access to records if they are legally subject to review." Shortly thereafter, Mr. Sheliga initiated this appeal, questioning Retirement's application of KRS 61.661 to records that apply to all fiscal court and city council or commission members. He noted that in March 1996 Retirement conducted a survey, examples of which were attached to his appeal, in which cities and counties were asked to describe the status of their elected officials by indicating if they were full-time or part-time and if they participated in the Systems. This, he suggested, along with a 1992 resolution issued by the Rockcastle County Fiscal Court declaring the magistrates full-time employees "from the date of entry into the County Employment Retirement System of the State of Kentucky," were records responsive to his request but not shielded from disclosure by KRS 61.661(1).
In supplemental correspondence directed to this office, Retirement amplified on its position that "disclosure of documents responsive to the request would certainly violate the mandate of KRS 61.661." Retirement questioned the Attorney General's authority to review its "compliance with KRS 61.661," asserting that "the Open Records laws do not extend the jurisdiction of the Attorney General to test whether [it] properly made a determination that it was acting in accordance with its affirmative duty to protect confidentiality. " In the event the Attorney General disagreed with this position, Retirement maintained that Mr. Sheliga's requests did not contain a "'precise' description of the public records which are reasonably available." Additionally, Retirement argued that Mr. Sheliga's requests were framed as requests for information and "egregiously deficient in this respect." As noted, we find none of these arguments persuasive.
We dispense first with Retirement's jurisdictional challenge. KRS 61.880(2) does not, explicitly or implicitly, remove Retirement from its scope. That statute provides:
If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
Retirement does not contest its status as a public agency, but asserts that KRS 61.661 "is not within Kentucky's Open Records laws" and "places an affirmative duty on [it] to . . . [withhold] specific data regarding a current, former, or other retired member . . . ." So, too, do numerous confidentiality provisions that appear in the Kentucky Revised Statutes and that are partially summarized at pages 34 and 35 of the Attorney General's Open Records and Open Meetings Outline, http://ag.ky.gov/civil/orom/outline.htm at pages 34-35. These provisions are incorporated into theOpen Records Act by KRS 61.878(1)(l), authorizing public agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Public agency denials of open records requests postulated on this exception and a corresponding confidentiality provision are regularly reviewed by the Attorney General. See, open records decisions cited in the referenced URL. Unless the General Assembly has expressly declared that the Attorney General shall not review an agency's denial of an open records request, as it has at KRS 7.119(3) relative to records of the Legislative Research Commission, 3 or determined that a class of records "shall not be considered open records under KRS 61.872 to 61.884," as it has relative to certain accident reports filed with the Kentucky State Police, this office is statutorily obligated to review "public agency's denial of a request to inspect a public record, " as those terms are defined at KRS 61.870(1) and (2), upon receipt of the request and denial. Having reviewed Retirement's denial of Mr. Sheliga's request, we find that the agency's construction of KRS 61.661(1) is overbroad.
KRS 61.661(1) provides:
Each current, former, or retired member's account shall be administered in a confidential manner and specific data regarding a current, former, or retired member shall not be released for publication unless authorized by the member; however, the system may release account information to the employer or to other state and federal agencies as it deems necessary or in response to a lawful subpoena or order issued by a court of law. The current, former, or retired member's account shall be exempt from the provisions of KRS 171.410 to 171.990.
(Emphasis added.) The statute is narrowly worded to prohibit release of one category of records, admittedly a large one, Retirement maintains. Thus, in OAG 80-506 the Attorney General approved Retirement's reliance on KRS 61.661(1) to withhold records revealing employees' total months of service credit, the dollar amount of contributions, and the dollar amount of their employers' contributions. Accord, 99-ORD-209 (holding that records reflecting retired judge's transfer of service from the Kentucky Retirement System to the Kentucky Judicial Form Retirement System could properly be withheld). It is not intended to cloak all other records maintained by Retirement in secrecy. Given Retirement's fiduciary role, and its stated goal of "improv[ing] public transparency," 4 we believe that KRS 61.661(1) should be read no more broadly than is necessary to effectuate its purposes. As we understand it, KRS 61.661(1) is purposed to subserve the privacy interests of current, former, and retired members in their specific account data, not to obstruct the public's interest in monitoring member eligibility through records access. For this reason, we reject Retirement's blanket denial of Mr. Sheliga's request based on the unsupported claim that disclosure of responsive records creates "a substantial likelihood of member identification. " It is incumbent on Retirement to provide him with records confirming the eligibility of county magistrates and city council persons/commissioners from the counties and cities identified in his request to participate in the Systems.
KRS 78.520 establishes a retirement system for county employees denominated the County Employees Retirement System. "Employee" is defined at KRS 78.510(6) as "every regular full-time appointed or elective officer or employee of a participating county . . . ." "Regular full-time positions" mean "all positions that average one hundred (100) or more hours per month, determined by using the number of hours actually worked in a calendar or fiscal year . . . ." Eligibility is thus contingent on a full-time position that averages 100 or more hours actually worked per month. It is our understanding that county officials, usually the county treasurers, are required to submit monthly sworn statements to Retirement certifying that employees, including magistrates, have, in fact, worked 100 hours. These affidavits, along with supporting timesheets, if they exist, would almost certainly satisfy Mr. Sheliga's request, as would any resolutions or meeting minutes classifying county magistrates or city council persons/commissioners as full-time. Such documentation does not contain "specific data regarding a current, former, or retired member ['s] retirement account" but is the functional equivalent of documentation regularly disclosed by public agencies reflecting "[t]he time a public employee spends in performance of public service which is compensated by public funds [and] is directly related to public employment performance . . . ." See OAG 84-161, p. 2; 96-ORD-239; 99-ORD-209. Accordingly, we find that KRS 61.661(1) does not prohibit disclosure of records confirming member eligibility but is instead restricted to specific data in member accounts such as service credit, employee contribution, and employer contribution. OAG 80-506. Retirement's reliance on KRS 61.661(1) to deny Mr. Sheliga's request was therefore legally unsupportable.
So, too, were its arguments that Mr. Sheliga's requests were insufficiently precise and improperly framed as requests for information. Although Mr. Sheliga arguably "muddied the waters" by identifying a series of documents that might be responsive to his requests, and by providing Retirement with the names of public officials whose eligibility he wished to confirm, his request was largely framed as a request for records that establish local official eligibility to participate in the retirement systems. As Kentucky's highest court opined in a landmark opinion issued in 2008:
[W]e express our agreement with the District Court of Rhode Island's astute holding that an open records request:
Commonwealth v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008) 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). Mr. Sheliga's request may not have been brief and simple, but it otherwise satisfied this standard. Retirement must therefore provide him with responsive records in a manner consistent with the parameters set forth above, assert a separate statutory basis for denying him access to any portion of those records, or advise him that no responsive records exist. This conclusion encompasses all requested records including those that describe the legal mechanism, if any, for challenging a member's eligibility in the Kentucky Retirement Systems and the three retirement systems it administers. We fully concur with Mr. Sheliga in his view that KRS 61.661(1) was never intended to shield these records from disclosure.
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.
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