24-ORD-143
June 18, 2024
In re: John Barrow/City of Strathmoor Village
Summary: The City of Strathmoor Village (“the City”) violated the
Open Records Act (“the Act”) when it failed to respond to a request for
public records within five business days. The City also violated the Act
when it denied a request for public records without citing a statutory
exemption and explaining how it applied to the records withheld. The
City did not violate the Act when it could not provide records that are
not within its possession, custody, or control, but violated the Act when
it withheld records in their entirety instead of redacting the exempted
material and providing the nonexempt portions.
Open Records Decision
On April 1, 2024, John Barrow (“Appellant”) submitted a request to the City
for a “[c]opy of all payroll payments made to all employees of [the City] including
elected officials” in 2023, including “the identification of all person [sic] relating
(directly or indirectly) to any elected official” and “any individual paid via a contractor
or any business.” Having received no response to his request by May 13, 2024, the
Appellant attended a City meeting and made an inquiry to the city attorney, who
orally informed him his request would be denied. Having received no written denial
by May 16, 2024, the Appellant initiated this appeal.
When a public agency receives a request for public records, it must determine
within five business days “whether to comply with the request [and] notify in writing
the person making the request, within the five (5) day period, of its decision.”
KRS 61.880(1). On appeal, the City states it “has no record of when it actually
received the request” but “admits that its written response . . . may have been
untimely.” Because the Appellant claims he submitted his request on April 1, 2024,
and the City does not dispute that it failed to respond in writing prior to his initiating
this appeal on May 16, 2024, the City violated the Act.The day after the Appellant initiated this appeal, the City denied the
Appellant’s request in writing. With regard to payroll for vendors and contractors,
the City stated it did not have any such records because it “does not provide any
payroll services to” those entities. The City further stated that “[t]he only persons for
whom the City does any ‘payroll’ are [its] police officers and elected officials,” but it
was withholding those records because they include “information regarding
deductions from and taxation of, the income of those employees, which is information
which is not open to the public.” The City’s response cited no provision of the Act.
Under KRS 61.880(1), a public agency denying inspection of public records
must “include a statement of the specific exception authorizing the withholding of the
record and a brief explanation of how the exception applies to the record withheld.”
Here, the City’s response cited no exception, but merely stated certain information
was “not open to the public.” Therefore, the City violated the Act.
On appeal, the City reiterates that it does not provide payroll services for
vendors or contractors, and therefore, it has no payroll records for employees of those
entities. A public agency “is responsible only for those records within its own custody
or control.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 856 (Ky.
2013) (citing Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136
(1980)). Once a public agency states affirmatively that it does not have the requested
records within its possession, custody, or control, the burden shifts to the requester
to present a prima facie case that it does possess such records. See Bowling v.
Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky. 2005). Here, the
Appellant has not attempted to make such a showing. Accordingly, the City did not
violate the Act when it could not provide payroll records for vendors or contractors.
With regard to its own employees, the City claims its payroll records are
exempt from disclosure under KRS 61.878(1)(a) because they contain “information
personal to [its] employees such as tax deductions and child support payments.”
KRS 61.878(1)(a) exempts from public disclosure “[p]ublic records containing
information of a personal nature where the public disclosure thereof would constitute
a clearly unwarranted invasion of personal privacy.” In OAG 82-233, the Attorney
General recognized that payroll records contain “a mixture of exempted and non-
exempted information,” such that the “name of the person being paid and the gross
pay to that person is not exempt from public disclosure,” but information relating to
payroll deductions, “such as withholding for taxes, insurance, retirement, credit
union, bonds, charitable contributions, and annuities are items which come under the
exemptions provided by KRS 61.878(1)(a).” The Office has consistently held that
information regarding such deductions is exempt. See, e.g., 22-ORD-240; 16-ORD-
234; 07-ORD-056. Therefore, the City is correct that information regarding payroll
deductions is exempt under KRS 61.878(1)(a).However, when records contain a mixture of exempt and nonexempt
information, a public agency may not withhold the records in their entirety; rather,
the agency must redact the exempt portions and provide the remainder. See
KRS 61.878(4) (“If any public record contains material which is not excepted under
this section, the public agency shall separate the excepted and make the nonexcepted
material available for examination.”). Therefore, the City violated the Act when it
denied the Appellant’s request for its payroll records altogether, rather than
providing him a redacted copy of those records.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. Pursuant to KRS 61.880(3), the Attorney General shall
be notified of any action in circuit court, but shall not be named as a party in that
action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#247
Distributed to:
Mr. John Barrow
John W. Harrison, Jr., Esq.
Hon. Timothy Schroering
Ms. Pam Cook