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 violated the Open Records Act in denying Eva Smith-Carroll's February 4, 2011, request for access to "the current payroll records for Kentucky Retirement System employees." Neither its argument that Ms. Smith-Carroll's request was "unduly burdensome and would likely disrupt [Retirement's] daily business operations" nor its argument that KRS 61.661 prohibits Retirement from disclosing specific employee salary information "because [its employees] are also members of the retirement systems," is persuasive.
On February 10, 2011, Retirement advised Ms. Smith-Carroll that her request implicated "tens of thousands of documents," and, without specific reference to the applicable provision, implicitly invoked KRS 61.872(6). 1 Additionally, Retirement indicated that KRS 61.661 precluded disclosure of employee salary information "that [she] might otherwise be able to find on a public web site, or which is otherwise in the public domain," because its employees participate in the retirement systems. In supplemental correspondence directed to this office after Ms. Smith-Carroll initiated her appeal, Retirement argued that disclosure of "specific information concerning specific members of the Kentucky Retirement Systems, in this case the salaries of its employees[,] would certainly violate the mandate of KRS 61.661." In support, Retirement cited HB 480, a bill introduced in the 2011 Regular Session of the Kentucky General Assembly but not enacted into law. Among other things, that bill would have required Retirement to make systems expenditures and employees salaries available on a web site, but contained the disclaimer that "[n]othing in this paragraph shall require the system to disclose confidential information pursuant to KRS 61.661." Retirement maintained that the unsuccessful bill reflected the legislative recognition that the agency "cannot disclose any member salary information, including that of its employees." This, in our view, represents a strained and overbroad construction of the language of HB 480 as well as KRS 61.661.
Although Ms. Smith-Carroll's open records exchange with Retirement occurred prior to the issuance of 11-ORD-028, in that open records decision the Attorney General determined that, "[g]iven Retirement's fiduciary role, and its stated goal of 'improv[ing] public transparency, ' 2 we believe that KRS 61.661(1) should be read no more broadly than is necessary to effectuate its purposes." 11-ORD-028, p. 5. That purpose, we postulated, is "to subserve the privacy interests of current, former, and retired members in their specific account data, not to obstruct" public oversight of the Retirement Systems. Id. We contrasted OAG 80-506, affirming Retirement's reliance on KRS 61.661(1) to withhold records revealing employees' total months of service credit, the dollar amount of their contributions, and the dollar amount of their employers' contributions, with the records requested in 11-ORD-028, namely, those confirming the eligibility of county magistrates and city councilpersons/commissioners to participate in the retirement system, declaring the latter nonexempt under KRS 61.661(1). We believe that 11-ORD-028 is dispositive of the issue presented in this appeal, and find additional support for this position in the language of the unsuccessful legislation proposed in the 2011 Regular Session.
In furtherance of the "bipartisan, multi-agency effort led by Governor Steve Beshear to provide a more transparent, accountable state government" embodied in Kentucky's Transparency Portal found at http://opendoor.ky.gov, theproposed amendment to 61.845(19) would have required the creation of:
A searchable database of the [Kentucky Retirement Systems'] expenditures and a listing of each individual employed by the systems along with the employee's salary or wages. In lieu of posting the information required by this paragraph to the systems' Web site, the systems may provide the information through a Web site established by the executive branch to inform the public about executive branch agency expenditures and public employees' salaries and wages. Nothing in this paragraph shall require the systems to disclose confidential member information protected under KRS 61.661.
No construction of this amendment supports Retirement's argument that "the Legislature and the Legislative Research Commission recognized that Retirement cannot disclose any member salary information, including that of its employees." It defies logic to suggest that the Legislature would propose an amendment that required Retirement to publish, either in a searchable database or on the Kentucky Transparency Portal, a list of "each individual employed by the systems along with the employee's salary or wages" only to declare in the same paragraph that the names of system employees and their salaries are "confidential member information protected under KRS 61.661."
Regardless of whether Retirement is statutorily mandated to promote transparency by creating a database of agency personnel data or by exporting agency personnel data to the Open Government Portal, it has an existing statutory duty under KRS 61.880(1) to make that data available upon receipt of an open records request. In the simplest terms, the public is entitled to know who works for Retirement and how much they earn regardless of the fact that the data is maintained by Retirement and that through a combination of mathematical calculation, detective work, and prognostication, the public might extrapolate member account data from that single piece of information. To suggest otherwise is to expand the scope of KRS 61.661 far beyond its unambiguous language and its intended goal by "cloak[ing] all other records maintained by Retirement in secrecy." 11-ORD-028, p. 5. The Open Records Act governs Retirement's records, requiring disclosure of those records unless the records fall within the parameters of one or more of the exceptions codified at KRS 61.878(1)(a) through (n). Among these exceptions, KRS 61.878(1)(l) 3 incorporates all confidentiality provisions in the Kentucky Revised Statutes, including KRS 61.661 , into the Open Records Act. Because KRS 61.661 does not prohibit disclosure of its employees' names and salaries, the Kentucky Retirement Systems violated the Open Records Act in denying Ms. Smith-Carroll's request.
We reject without additional analysis Retirement's assertion that Ms. Smith-Carroll's request was overly broad. Whatever confusion may have initially existed has been eliminated. There is no legitimate basis for the assertion that a request for the salaries of Retirement's current employees is overly burdensome, and we reject that argument for the same reasons we rejected the argument when it was advanced by Retirement relative to the records at issue in 11-ORD-028.
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.
Distributed to:
Eva Smith-CarrollSchuyler J. Olt
Footnotes
Footnotes
1 KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
2 KRS 61.845(19) identifies no less than ten records sets Retirement is currently required to publish. The addition of expense and salary information under the proposed amendment would have added an eleventh records set to the publication requirement.
3 KRS 61.878(1)(l) authorizes public agencies to withhold, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.