NOT TO BE PUBLISHED 

94-ORD-112

September 22, 1994

In re: Tony S. Colwell/Kentucky Turnpike Water

District Division 2

OPEN RECORDS DECISION

Mr. Tony S. Colwell challenges the actions of the Kentucky Turnpike Water District Division 2 relative to his August 22, 1994, request to inspect and copy various records relating to employees and employment practices at the District, and the minutes of a series of regular and special meetings. On behalf of the District, Mr. John W. Wooldridge partially denied Mr. Colwell's request in a letter dated August 26, 1994. Mr. Wooldridge advised Mr. Colwell that the District would provide him with copies of employee handbooks and the minutes of meetings, but would not provide him with copies of personnel files of other employees or records reflecting their salaries. He explained that the District "considers this confidential and a breach of the rights of the other employees."

He also declined Mr. Colwell's request to "put in writing" several matters not dealt with in the minutes of the meetings or otherwise.

In his letter of appeal to this Office, Mr. Colwell expresses the belief that the Water District is "trying to

cover up their unlawful doings." He asks that this Office review the actions of the Water District relative to his request, and issue a written decision stating that the District violated the Open Records Act. For the reasons set forth below, we conclude that the District's response constituted a partial violation of the Act.

We begin by noting that the District's response was procedurally deficient. KRS 61.880(1) provides:

The District's written response to Mr. Colwell's August 22 request was issued on August 26, one day after the statutory deadline. In addition, the District failed to cite the specific exception upon which it relied in denying the request, and briefly explain how the exception applies to the records withheld. We urge the District to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.

Turning to the substantive issues in this appeal, we find that the District violated the Open Records Act in denying Mr. Colwell's request for records disclosing employee job duties and rates of pay. This Office has consistently recognized that the public is entitled to know the name, position, work station, duties, and salary of a public employee. See, e.g., OAG 76-717; OAG 87-37; OAG 87-84; OAG 91-88; OAG 91-155. This Office has also stated that the privacy exception, codified at KRS 61.878(1)(a), applies to the employee's private life and off-duty activities, and that a public agency may properly withhold records, or portions of

records, which disclose the employee's home address, social security number, and marital status. The records requested by Mr. Colwell fall squarely within the first category of nonexempt records, and must be disclosed.

Mr. Wooldridge improperly characterizes Mr. Colwell's request as a request for the District employees' personnel files. A blanket request for all records contained in a personnel file could properly be denied. Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981). However, Mr. Colwell did not request all records in the files, but only those records which disclose the employees' job duties and salaries. In our view, this request is entirely proper, and the District is obligated to honor it.

Mr. Colwell expresses concern that he has not received all available minutes of the District's public meetings. Specifically, he notes the omission of minutes of the following meeting:

Special Meeting on December 16, 1993

Last regularly scheduled meeting in January, 1994

Special meeting on February 17, 1994

Special meeting on April 7, 1994

Meeting on July 7, 1994

Special meeting on July 9, 1994

Meeting on July 11, 1994

Meeting on August 4, 1994.

The District agreed to furnish Mr. Colwell with copies of the minutes currently in its possession. This Office is ill-equipped to determine whether all existing minutes have been released. The District is, of course, required to record the minutes of votes and actions at all of its meetings pursuant to KRS 61.835, and those minutes must be made available for inspection no later than the conclusion of its next meeting. Failure to record minutes constitutes a violation of the Open Meetings Law. This issue of whether the District violated the law by failing to record minutes at all of its meetings has not been properly presented to the Attorney General, and is not, in any event, cognizable under the Open Records Act. It is our opinion that the District is obligated to release all available minutes of its meetings, if it has not already done so, including those identified by date in Mr. Colwell's letter.

We concur with Mr. Wooldridge in his view that the Water District is not required to "put in writing" several

matters not dealt with in the minutes of the District's meetings or otherwise. The Open Records Act does not require a public agency to create records; it only obligates the agency to provide access to those which it has, in fact, created. OAG 78-321; OAG 90-100; OAG 91-12; OAG 91-20; OAG 91-138; OAG 91-203. Accordingly, the District need not create records to satisfy Mr. Colwell's requests.

Mr. Colwell and the Kentucky Turnpike Water District Division 2 may challenge this decision by initiating action in the appropriate circuit court. Although the Attorney General must be notified of any action in circuit court pursuant to KRS 61.880(3), he may not be named as a party in that action, or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

res/1148

Distributed to:

Hon. John W. Wooldridge

278 Frank E. Simon Avenue

P.O. Box 670

Shepherdsville, KY 40165

Mr. Tony S. Colwell

576 Deatsville Road

Shepherdsville, KY 40165