TO BE PUBLISHED

97-ORD-85

May 27, 1997

In re: Steve Rock/University of Kentucky

Open Records Decision

The question presented in this appeal is whether the University of Kentucky violated provisions of the Open Records Act in partially denying Kansas City Star reporter Steve Rock's February 15, 1997, request for "University-related public documents required to be on file in the school's athletic department." Among other things, Mr. Rock requested "copies of records -- required by NCAA bylaw 11.2.2 to be in writing -- of all athletically related outside income (i.e., [sic] shoe deals) or benefits for all members of the athletic department." Although the University of Kentucky released some 470 pages of documents in response to Mr. Rock's request, including "Request for Approval for Outside Athletically Related Income" forms for 1995 - 96, the University masked the amounts and sources of outside income which appeared on the forms pursuant to KRS 61.878(1)(a), arguing that disclosure would constitute a clearly unwarranted invasion of personal privacy. For the reasons which follow, we find that the University properly relied on KRS 61.878(1)(a) to authorize nondisclosure of the amounts of outside athletically income, but that KRS 61.878(1)(a) does not authorize nondisclosure of the sources of that income.

KRS 61.878(1)(a) permits public agencies to withhold:

Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.

In an early open records decision, the Kentucky Court of Appeals developed a standard by which to judge the propriety of an agency's invocation of the personal privacy exemption. Board of Education of Fayette County v Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981). At page 111 of that decision, the court observed:

[W]e should point out that we do not subscribe to the tilting toward disclosure doctrine [adopted by the federal courts] but rather apply the test of balancing the interests of the parties as well as those of the public measured by the standard of a reasonable man.

The court thus recognized that "we must treat these actions on a case by case basis." Id.

The Kentucky Supreme Court revisited this issue in 1992, refining the standard set forth in Board of Education and departing, at least in part, from that decision by establishing that the Open Records Act does, in fact, "exhibit[ ] a general bias favoring disclosure." Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992). The court began its analysis with the proposition that "[t]he public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory function." Id. Continuing, the court observed:

In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.

Id. The court also recognized that the existence of the privacy exemption "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion of unwarranted public scrutiny." Id.

Drawing on these fundamental principles, the court articulated the following standard for determining if a record may properly be excluded from public inspection pursuant to KRS 61.878(1)(a):

[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.

Board of Examiners at 327, 328.

In Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994), the Court of Appeals was again presented with a challenge to an agency's invocation of the personal privacy exemption. Echoing the rule announced in Board of Examiners, the court elaborated on its "mode of decision":

[O]ur analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy." This latter determination entails a "comparative weighing of antagonistic interests" in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [Board of Examiners] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. [Citation omitted.]

Zink at 828. Applying this standard, the court concluded that the Commonwealth of Kentucky, Department of Workers Claims, properly relied on KRS 61.878(1)(a) in denying the requester access to injury report forms filed with the Department which contained information including marital status, number of dependents, wage rate, social security number, home address, and telephone number. The court emphasized that the only relevant public interest to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act which is "to further the citizens' right to know what their government is doing and . . . subject agency action to public scrutiny." Zink at 829. Because no public interest would be served by disclosure of information on the injury report forms in which applicants for workers compensation benefits had a cognizable privacy interest, that information could properly be withheld.

With these principles in mind, we turn to the question presented in this appeal: Whether disclosure of the amounts and sources of outside athletically related income earned by employees of the University of Kentucky's athletic department constitutes a clearly unwarranted invasion of personal privacy. It is the opinion of this office that the amounts of outside income qualify for exclusion under the cited provisions, but not the sources of that income.

At the outset, we emphasize that what is at issue here is not amounts paid from public coffers for the performance of public duties. This office has long recognized that the public interest in ascertaining the salaries of public employees is superior to the employees' privacy interest in those salaries. OAG 76-717. "The public is entitled to inspect records documenting exact amounts paid from public monies, to include amounts paid for items or for salaries." OAG 90-30, p. 3. Such records "are perhaps uniquely of public concern." Id. The University of Kentucky acknowledged these principles by disclosing salaries paid to each employee by the University. The issue in this appeal centers on outside income which "in no way relates to the functions, activities, programs, or operations of [the University]." It is the University's position that "Athletic Department staff members have a clear privacy interest in any extra-University sources and amounts of income [, and] disclosure of this information would in no way further the public's interest in monitoring the performance of these individuals in their public duties." With respect to the amounts of income, we concur.

Kentucky's courts have recognized that salaries or wage rates "are generally accepted by society as details in which an individual has at least some expectations of privacy." Zink at 828. Indeed, "few things in our society are deemed of a more intimate nature than one's income [, and] this information is commonly treated circumspectly." Zink at 829. Having established that the privately earned income of employees of the University's athletic department is of a personal nature, we must next determine if disclosure of that income would constitute a clearly unwarranted invasion of personal privacy by weighing the privacy interest of those employees against the public interest in subjecting University action to public scrutiny.

The University is required to maintain documentation on its employees' outside athletically related income by NCAA regulation (although not by statute or state regulation). Arguably, the public has a legitimate interest in ascertaining whether the University is complying with this requirement. This interest has, however, been effectually promoted by release of the redacted request for approval forms. "Mindful that the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity, . . . and that there is a countervailing public interest in personal privacy, here strongly substantiated," we conclude that disclosure of the amounts of outside income earned by employees of the University's athletic department would constitute a clearly unwarranted invasion of personal privacy. Board of Examiners at 328.

Conversely, "the place of one's employment may not rise to a personal level, as one generally does not work in secret." Zink at 828; see also OAG 89-90, p. 7, 8 (holding that "one does not typically work in secret, such that one's . . . work experience would be reasonably termed information of a personal nature"). This is especially true where the nature of that employment places the individual directly in the public eye, such as television and radio commentary, product endorsement, speaking engagements, and sports camps bearing the name of the University employee. It cannot be persuasively argued that the employees of the University's athletic department have a reasonable expectation of privacy in the sources of their outside income. Because this information fails to meet the threshold requirement for invocation of the privacy exception, we need not postulate the competing public interest. It is sufficient, in our view, to conclude that there is no privacy interest implicated by disclosure of the sources of the athletic department employee's outside income, and this information must be released.

Consistent with the principles set forth above, the University of Kentucky is directed to release the request for approval forms submitted by employees of its athletic department. 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

Attorney General

Amye L. Bensenhaver

Assistant Attorney General

#311

Distributed to:

Steve Rock

Reporter

The Kansas City Star

1729 Grand Avenue

Kansas City MO 64108

George DeBin

Official Records Custodian

Administration Building

University of Kentucky

Lexington KY 40506

Paul Van Booven

Deputy General Counsel

2 Administration Building

University of Kentucky

Lexington KY 40506