AGO 2007-026.

Case DateAugust 21, 2007
CourtOhio
Ohio Attorney General Opinions 2007. AGO 2007-026. August 21, 2007Steven Lee Johnson, Ph.D.President and CEO Sinclair Community College 444 West Third Street Dayton, Ohio 45402-1460 SYLLABUS: 2007-026Article II, § 34a of the Ohio Constitution and Am. Sub. H.B. 690, 126th Gen. A. (2006) (eff. April 4, 2007) do not render confidential information about a public employee's rate of pay, the number of hours worked by the employee, or the amount of compensation paid to the employee, nor do they otherwise exempt this information from inspection and copying under R.C. 149.43. Therefore, any person, including any co-worker of a public employee, has the right under R.C. 149.43 to inspect and copy information about a public employee's pay rate, hours worked, and amounts paid. OPINION NO. 2007-026Steven Lee Johnson, Ph.D. President and CEO Sinclair Community College 444 West Third Street Dayton, Ohio 45402-1460 Dear President Johnson: You have requested an opinion about how Ohio's new minimum wage constitutional amendment, Ohio Const. art. II, § 34a, and its implementing legislation, impact the way that public colleges and universities respond to requests made under Ohio's public records law, R.C. 149.43, for wage and employment information. Before addressing the minimum wage amendment and legislation, we will begin with a brief overview of the public records law, focusing on the treatment of employee information thereunder. In the interest of completeness, we will then discuss the rights granted to public employees under the personal information systems law, R.C. Chapter 1347. Public Records Law, R.C. 149.43 R.C. 149.43 grants any person the right to inspect a public record at any reasonable time, and, upon request, to receive copies of a public record, at cost, and within a reasonable period of time.(fn1) R.C. 149.43(B)(1). For purposes of R.C. 149.43, a "public record" is a record "kept by any public office." R.C. 149.43(A)(1). A "public office" includes "any state agency, public institution, political subdivision, or other organized body, office, agency, institution, or entity established by the laws of this state for the exercise of any function of government." R.C. 149.011(A). A community college district is a political subdivision of the state. R.C. 3354.01(A); R.C. 3354.03. Thus, Sinclair Community College is subject to the requirements of R.C. 149.43, and must make its public records available to any person for inspection and copying.(fn2) Most of the information that is kept by a public office about its employees is a public record.(fn3) There are, however, several exceptions. First, personal information about public employees that does not meet the definition of a "record" - that is, does not serve to document the functions of the office - is not subject to R.C. 149.43.(fn4) This type of information may include, for example, the home addresses of state employees. State ex rel. Dispatch Printing Co.v.Johnson, 106 Ohio St. 3d 160, 2005-Ohio-4384, 833 N.E.2d 274.(fn5) Cf. Kish v. City of Akron, 109 Ohio St. 3d 162, 2006-Ohio-1244, 846 N.E.2d 811, at ¶¶ 25-26 ("[t]ime sheets of government employees fall squarely within the definition of `records' for purposes of the Public Records Act," and "separate comp-time sheets and the ledger that compiled and contained a summary of the information on the comp-time sheets are all individual records under R.C. 149.011(G)") (internal quotation marks omitted); State ex rel. Thomas v. Ohio State University, 71 Ohio St. 3d 245, 246-47, 643 N.E.2d 126 (1994) (the names and work addresses of animal research scientists serve to document the organization, functions, and operations of the university's animal research activities, and are records). Second, the General Assembly has excluded from the meaning of "public record" certain types of information, even though they are kept by, and may document the functions of, a public office. For example, the General Assembly has deemed not to be a public record certain personal and family information kept by a public office about specified safety and law enforcement personnel. R.C. 149.43(A)(1)(p) and (A)(7). See Sub. H.B. 141, 126th Gen. A. (2006) (eff. March 30, 2007) (expanding scope of professions and occupations to which exclusion for residential and familial information applies). Also, medical records (regardless of whether they are those of a public employee or other person) are not public records. R.C. 149.43(A)(1)(a) and (A)(3). The General Assembly has also created a "catch-all" exception for records, "the release of which is prohibited by state or federal law." R.C. 149.43(A)(1)(v). Any information made confidential by law is not, therefore, a public record under R.C. 149.43. See, e.g., State ex rel. Taxpayers Coalition v. City of Lakewood, 86 Ohio St. 3d 385, 390, 715 N.E.2d 179 (1999) (a state administrative rule made all information regarding an employee's deferred compensation account confidential, and therefore, the city properly redacted the amounts of deferred compensation contributions, as well as Social Security numbers, from the requested W-2 forms for water department employees). Most notably for our purposes, courts have applied this confidentiality exception to information in which an employee has a constitutional right of privacy, as discussed in greater detail, infra. None of these exceptions, however, have been applied to information about a public employee's rate of pay, number of hours worked, or amount of compensation paid. Courts have ruled consistently that such pay information is a public record.(fn6) Therefore, R.C. 149.43 grants a public employee, any of the employee's co-workers, and any other person, see note 2, supra, the right to inspect and copy the employee's pay information. Personal Information Systems Law, R.C. Chapter 1347 R.C. Chapter 1347 grants a public employee the right to inspect and copy personal information about himself that is kept by his employing government agency in a "personal information system."(fn7) R.C. 1347.08(A)(2) states that, "upon the request and the proper identification of any person who is the subject of personal information in [an agency's] system," the agency must, inter alia, "permit the person, the person's legal guardian, or an attorney who presents a signed written authorization made by the person, to inspect all personal information in the system of which the person is the subject." The employer must also provide a copy of any personal information to any person who is authorized to inspect the information, and may charge reasonable fees for the service of copying. R.C. 1347.08(D). A person has the right to dispute, and seek to correct, any personal information pertaining to him that he believes is inaccurate or incomplete. R.C. 1347.09. A public employee's pay information is "personal information" that the employee may inspect and copy under R.C. Chapter 1347. See 1981 Op. Att'y Gen. No. 81038 at 2-149 ("[i]nformation regarding employees of the [Ohio Civil Rights] Commission clearly constitutes `personal information' as defined by R.C. 1347.01(E)"). As explained in 1990 Op. Att'y Gen. No. 90-007, "R.C. Chapter 1347 grants to the subject of the information the right to inspect and dispute such information and requires the agency to investigate the disputed information," but R.C. Chapter 1347 does not "make information about individuals confidential." Id. at 2-32. And, because "R.C. Chapter 1347 does not make information confidential, but instead grants additional inspection rights, R.C. Chapter 1347 does not function to except personal information kept by a public office from the definition of `public record' under R.C. 149.43(A)(1)." Id. at 2-33. "Personal information under R.C. Chapter 1347, thus, is not a `record the release of which is prohibited by state or federal law.'" Id. Although R.C. Chapter 1347 "regulates access to personal information that is maintained in a personal information system by persons who are the subject of the information," it "does not limit the authority of any person, including a person who is the subject of personal information maintained in a personal information system, to inspect or have copied, pursuant to [R.C. 149.43], a public record as defined in that section." R.C. 1347.08(E)(1). See also R.C. 149.43(D) ("Chapter 1347. of the Revised Code does not limit the provisions of this section"); R.C. 1347.04(B) ("[t]he provisions of this chapter shall not be construed to prohibit the release of public records, or the disclosure of personal information in public records, as defined in [R.C. 149.43]. . . . The disclosure to members of the general public of personal information contained in a public record, as defined in [R.C. 149.43], is not an improper use of personal information under this chapter"). In sum, a public employee has the right under R.C. 149.43 and R.C. Chapter 1347 to inspect and copy his own pay information. Any other person may inspect and copy the pay information of a public employee under R.C. 149.43, and R.C. Chapter 1347 does not restrict his ability to do so. We turn now to the new minimum wage amendment, Ohio Const. art. II, § 34a, and its implementing legislation. New Minimum Wage Amendment, Ohio Const. art. II, § 34a In November, 2006, Ohio voters passed a second minimum wage amendment to the Ohio Constitution, Ohio Const. art. II, § 34a (§ 34a or the Amendment).(fn8) The Amendment...

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