NOT TO BE PUBLISHED
January 17, 1997
In re: Howard Founder/Workforce Development Cabinet
Open Records Decision
This matter comes to the Attorney General on appeal from the responses of the Workforce Development Cabinet to Mr. Howard Founder's open records requests for access to certain of the cabinet's records pertaining to voluntary demotions.
On October 17, 1996, Mr. Founder requested to inspect copies of a list of persons voluntarily demoted within the Department for Employment Services from January 1, 1993 through December 31, 1994; a list of persons voluntarily demoted with reduced pay and supporting documentation; any and all supporting documentation concerning adjustments or changes in pay for those who were originally voluntarily demoted with pay decrease, including the reason for the change; and the race and gender of each person listed.
By letter dated October 23, 1996, Mr. Timothy A. Sturgill, Staff Attorney, Office of General Counsel, Workforce Development Cabinet, denied Mr. Founder's request advising him that neither the Division of Personnel Services nor the Department for Employment Services had a list, in any form, of individuals voluntarily demoted within the department during the specified period. He further informed him that he may be able to obtain the requested information from the Personnel Cabinet.
On October 28, 1996, Mr. Founder requested the names, races and gender of persons voluntarily demoted within DES from January 1, 1993 through December 31, 1995; the names, races and gender of persons voluntarily demoted and pay reduced within DES from January 1, 1993 through December 31, 1995; and any and all supporting documentation concerning adjustments or changes in pay for those who were originally voluntarily demoted with pay decrease, to include reason for change.
By letter dated October 28, 1996, Mr. Sturgill denied Mr. Founder's second request, again explaining that the department did not maintain a list of persons who had taken voluntary demotions.
On November 1, 1996, Mr. Founder requested to inspect the P-1's for employees within the Department for Employment services who accepted a voluntary demotion between January 1, 1993 through November 1, 1996 and any supporting documentation concerning adjustments or corrections made in pay originating from a voluntary demotion; P-1's that show change in positions; and P-1's showing pay adjustments relating to voluntary demotions along with any supporting documentation.
By letter dated November 7, 1996, Mr. Sturgill, denied Mr. Founder's request for the P-1's, stating in relevant part:
As explained to you in letters dated October 23, 1996 and October 28, 1996, neither the Workforce Development Cabinet (hereinafter the Cabinet) nor the Department maintains a list of persons who have accepted voluntary demotions. The only method available to the Cabinet of identifying which DES employees received voluntary demotions during the time in question is to physically examine every P-1 in the personnel file of each individual employed by the Department during that period. Furthermore, the Cabinet does not have custody of the personnel files of individuals who were no longer employed on DES on July 1, 1995, the effective date of the Department's transfer to this cabinet. Those records were retained by the Cabinet for Human Resources.
The Division of Personnel Services (hereinafter the Division) estimates that it would take an average of fifteen (15) minutes per file to review the approximately 1,200 DES personnel files in its possession. It would take staff of the Division 300 hours to determine which of these employees accepted voluntary demotions. With an average salary, excluding benefits, of approximately 16.50 per hour, it is estimated that it would cost the taxpayers of the Commonwealth nearly $4,950.00 just to perform this initial step to comply with your request.
After identifying the individuals who accepted voluntary demotions during the time covered by your request, the Division would have to remove the appropriate P-1's from their files; copy the P-1's; redact the copies to protect personal information such as the employee's home address, home telephone number, social security number, etc.; replace the original P-1 in the personnel file; and copy the redacted P-1 for your inspection. The Division estimates that it would require an additional fifteen (15) minutes to complete these procedures for each employee who accepted a voluntary promotion.
KRS 61.872(6) allows an agency to refuse to permit the inspection of public records if the application places an unreasonable burden upon the agency in producing such records. As clearly demonstrated above, compliance with your request would place an undue burden upon the agency. Accordingly, the Department refuses to permit inspection of these records pursuant to KRS 61.872(6). See 96-ORD-42. Your money order is enclosed herewith.
On November 9, 1996, Mr. Founder submitted another request asking to inspect the P-1's of four specific employees, any supporting documentation to include memos and any communications by DES to these persons concerning voluntary demotions with a pay decrease and any adjustments or changes in pay relating to voluntary demotions.
By letter dated November 15, 1996, Mr. Sturgill advised Mr. Founder that he was currently reviewing documents provided by the department which might be responsive to his request. He further advised that copies of these records would be forwarded to him, subject to the exceptions to the mandatory disclosure provisions of the open records law.
By follow-up letter, dated November 27, 1996, Mr. Sturgill provided Mr. Founder with copies of department records that were responsive to his request, but not exempted from disclosure by the Open Records Act. He advised that, pursuant to KRS 61.878(1)(a) and (4), certain information in the enclosed records had been redacted to protect information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. He indicated that information such as the employee's social security number, home address, home county, home county code, home telephone number, age, race, gender, date of birth, etc., had been redacted. Relying upon KRS 61.878(1)(i), Mr. Sturgill stated that notes that had been written on the enclosed documents had been redacted as preliminary notes pursuant to KRS 61.878(1)(i). He also identified and listed other records which were being withheld as preliminary drafts under KRS 61.878(1)(i).
In his letter of appeal, Mr. Founder states he has repeatedly made requests for access to records pertaining to voluntary demotions and feels that he has been denied access to the requested records in violation of the Open Records Act. In addition, he asks for clarification as to whether the race and gender of a public employee may be properly redacted as information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Finally, he asks whether complete documents are required to be presented in response to an open records request.
For the reasons which follow, we conclude that the responses of the department were proper and consistent with provisions of the Open Records Act.
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See 96-ORD-251 and the opinions cited therein. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky Open Records Act was not intended to provide a requester with particular information, or to require public agencies to compile information, to conform to the parameters of a given request.
Thus, we conclude the department acted consistent with the Open Records Act in denying Mr. Founder's requests of October 17 and October 28 on the basis that such lists of the information requested neither existed nor were maintained by the department.
We further conclude the department properly denied Mr. Founder's November 1 request to inspect the P-1's for employee's who accepted voluntary demotions between January 1, 1996 and November 1, 1996, pursuant to KRS 61.872(6), on the basis that his request was unreasonably burdensome.
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.
Only if the agency has adduced evidence which would warrant this office in finding that the burden is indeed an unreasonable one will the Attorney General uphold its action. In its denial, the Department indicates that, because it does not maintain a list of persons who have accepted voluntary demotions, the only method available to identify these employees is to manually examine approximately 1,200 personnel files to identify the relevant P-1's during that period. The department estimates that it would take an average of fifteen minutes per file to examine each personnel file, and that it would take staff 300 hours to determine which of these employees accepted voluntary promotions. At an average salary, excluding benefits, it would cost approximately $4,950.00 to comply with Mr. Founder's request, not including additional time that would be required in redacting personal information which appears on the P-1's.
The P-1's of public employees are subject to public inspection. 93-ORD-15. However, it is the breadth of the request which presents the problem. The department estimates that its employees would be required to expend 300 hours in order to satisfy Mr. Founder's request, as framed. This is an inordinate amount of time for an agency whose chief function is not the processing of records requests. We are not inclined to substitute our judgment, relative to the time needed to satisfy Mr. Founder's request, for that of the department, and therefore conclude that the department met the clear and convincing standard required by KRS 61.872(6). Accord 96-ORD-42.
In response to his request to inspect the P-1's of four specific employees, the department, pursuant to KRS 61.878(1)(a) and (4), redacted, among other things, the race and gender on the P-1's to protect information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. We are asked to clarify whether the redaction of the race and gender from the P-1's was consistent with the Open Records Act.
For the reasons which follow, we conclude that it was consistent. In 96-ORD-232, we held that race and gender are inherent characteristics of the individual employee in which there is at least some expectation of privacy and which is not directly indicative of how that employee is performing his or her public duties. Accordingly, we concluded that the agency properly redacted information as to the employees's race and gender.
Moreover, if such is necessary to satisfy concerns of monitoring the department's hiring and employment practices with respect to race and gender, alternative means of obtaining information as to their race and gender are available, such as to request a statistical breakdown from the agency or to contact the four individuals directly.
Finally, Mr. Founder, noting that portions of some of the records provided appear to be incomplete, asks whether complete documents are required to be provided in response to an open records request. KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that if the public agency denies all or any portion of the request, the response must include a statement of the specific exception authorizing the withholding, and a brief explanation of how the exception applies to the record withheld. Thus, unless portions of documents are otherwise exempt under an exception of KRS 61.878(1), the complete requested record should be made available.
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.
A. B. Chandler III
James M. Ringo
Assistant Attorney General
1750 West Gaulbert Avenue
Louisville KY 40202-1762
Beverly H. Haverstock
Workforce Development Cabinet
Capital Plaza Tower
Frankfort KY 40601
Timothy A. Sturgill
Office of General Counsel
Workforce Development Cabinet
Capital Plaza Tower
Frankfort KY 40601