Kansas Attorney General Opinion 1992-132

ROBERT T. STEPHAN
ATTORNEY GENERAL October 15, 1992
ATTORNEY GENERAL OPINION NO. 92- 132
Robert J. Watson
City Attorney
City Hall, 8500 Santa Fe Drive
Overland Park, Kansas 66212
RE: Public Records, Documents and Information --
Records Open to Public -- Inspection of Records;
Certain Records Not Required to be Open; Personnel
Record; Employee Benefit Plans; Payments to
Participant; Salary
State Departments; Public Officers and Employees --
Public Officers and Employees; Open Public Meetings
-- Secret Ballots; Binding Action in Closed or
Executive Sessions; Discretionarily Closed Record
Discussed or Acted Upon in an Open Meeting
Synopsis: The city of Overland Park board of trustees, which
administers that city's police department
retirement plan, is an entity subject to the
provisions of the Kansas open records act (KORA),
K.S.A. 45-215 et seq. As a public agency
subject to the KORA, that entity may
discretionarily close records which pertain to
individual city employees and that otherwise
qualify as personnel records under K.S.A. 1991
Supp. 45-221(a)(4). However, as set forth in that
statute, salaries of public employees must be
disclosed. It is our opinion that, for the
purposes of this KORA provision, the term salary
includes all forms of monetary compensation
actually paid out by the city to individual

employees in return for services rendered. Thus,
the amount of money actually paid as a pension
benefit is part of the employee's salary and must
therefore be disclosed. Furthermore, public
records which might otherwise be permissibly closed
pursuant to K.S.A. 1991 Supp. 45-221(a)(4) must be
disclosed if such records are reviewed and
discussed by a public body during an open meeting
subject to K.S.A. 75-4317 et seq., or if the
public body takes binding action on such a record.
Cited herein: K.S.A. 45-215; 45-217, as amended by
L. 1992, ch. 321, § 22; K.S.A. 1991 Supp. 45-221;
K.S.A. 75-4317; 75-4318; 75-4319, as amended by L.
1992, ch.312, § 39 and ch. 318,
§ 9.
*
Dear Mr. Watson:
As city attorney for the city of Overland Park you request our
opinion on several issues involving the Kansas open records
act (KORA), K.S.A. 45-215 et seq. The specific record
in question is possessed by a board of trustees. This board
was created by city charter ordinance and administers the
city's police department retirement plan and trust agreement.
The record at issue contains the amount and the method of
distribution of retirement benefits to a specific
participant. We must assume that the specific participant is
a current or former city employee. You ask the following
questions:
"1. Is the trustee a 'public agency' whose records are open
for inspection in accordance with the Kansas open records act?
"2. Is the information relating to the amount and the method
of distribution of a participant's retirement benefit which is
contained in the records of the trustee subject to disclosure
under the Kansas open records act?"
We concur with you that the board of trustees is a public
agency, within the definition set forth at K.S.A. 45-217, as
amended by L. 1992, ch. 321, § 22.
"(e)(1) 'Public agency' means the state
or any political or taxing subdivision of
the state, or any office, officer, agency
or instrumentality thereof, or any other

entity receiving or expending and
supported in whole or in part by public
funds appropriated by the state or by
public funds of any political or taxing
subdivision of the state."
The entity in question was created by the city to carry out
city functions. It acts solely pursuant to authority
delegated to it by the city and is supported in whole or in
part by public funds provided by the city. Thus, in answer to
your first question, this entity is a public agency subject to
the KORA.
The KORA generally declares that public records shall be
open for inspection by any person unless otherwise provided.
It defines public records at K.S.A. 45-217(f), as amended.
Such records include "any recorded information, regardless of
form or characteristics, which is made, maintained or kept by
or is in the possession of any public agency. . . ." Thus,
any record in the possession of this specific public agency
(unless falling within the parameters of K.S.A. 45-217(f)(2),
as amended) is a public record. Public records are presumed
open for inspection unless permissibly or mandatorily closed
pursuant to a specific law applicable to the specific record.
You inform us that the record in question contains information
on retirement benefit amounts and methodology for benefit
distribution options. You cite to K.S.A. 1991 Supp.
45-221(a)(4) as potential closure law. This statute provides:
"(a) Except to the extent disclosure is
otherwise required by law, a public agency
shall not be required to disclose:
"(4) Personnel records, performance
rating or individually identifiable
records pertaining to employees or
applicants for employment except that
this exemption shall not apply to the
names, positions, salaries and lengths of
service of officers and employees of
public agencies once they are employed as
such." (Emphasis added).
Attorney General Opinions No. 91-50, 90-136, 89-107, 89-106,
88-61, 87-169 and 87-10 discuss K.S.A. 45-221(a)(4). Pursuant

to the above emphasized language in the statute, public
agencies subject to the KORA are required to disclose the
names, positions, salaries and lengths of service of public
officers and employees. Disclosure of this information is not
discretionary. Thus, the issues become (1) does the record in
question qualify as a personnel record, and if so, (2) is the
information in the record nevertheless exempted from
permissive closure?
As discussed in Attorney General Opinion No. 87-10, personnel
means employees of public agencies. Personnel exceptions to
public openness laws generally promote and serve protection of
personal privacy. See State v. U.S.D. No. 305, 13
Kan.App.2d 117, 119 (1988): "The KOMA does not define
'personnel matters'; however, it has been suggested that the
purpose of this exception is to protect privacy rights of the
employees, save personal reputations, and encourage qualified
people to remain in public employ." See K.S.A.
75 - 4319(b)(1), as amended by L. 1992, ch. 312, § 39 and
ch. 318, § 9. As evidenced by K.S.A. 1991 Supp.
45-221(a)(4) and 75-4319(b)(1), as amended, the legislature
weighs public employees' privacy rights against public
interest in personnel records or discussions on public
employees.
In order to qualify as a personnel record, information or
matters discussed must necessarily concern individual public
employees. See also Attorney General Opinions No. 81-39,
88-25, and 80-102. Not every record with a person's name in
it is automatically a personnel record. See Attorney
General Opinion NO. 89-106. Furthermore, closing public
records not specific to individual public employees does not
further protection of personal privacy. It is our opinion
that K.S.A. 1991 Supp. 45-221(a)(4) permits closure of those
records which are personnel records and contain information
specific to applicants, current or former individual public
employees. However, policy or procedural records generally
concerning personnel matters may be presumed open, unless
otherwise closed pursuant to authority other than K.S.A. 1991
Supp. 45 - 221(a)(4).
For the purposes of this opinion we must assume that the
methodology of computing benefits and the actual retirement
benefit amounts in a personnel record relate to a specific
city employee, not just to a general category of city
employees. If such is the case, it is our opinion that such
records may be closed pursuant to the terms of K.S.A. 1991

Supp. 45-221(a)(4), if not specifically exempted from
permissible closure.
As you note in your opinion request letter, salaries are
exempt from permissive closure. The issue becomes whether
benefit amounts or the method of their distribution to the
individual participant can be considered "salary" which is
not entitled to the exemption for personnel records. This
exception to discretionary closure recognizes that the
public's interest in the amount of public money spent out
weighs the individual employee's right to privacy concerning
such matters.
Salary has been defined as "a reward or recompense for
services performed. In a more limited sense, a fixed
periodical compensation paid for services rendered. A stated
compensation paid periodically as by the year, month, or other
fixed period, in contrast to wages which are normally based on
an hourly rate." Blacks Law Dictionary 1200 (5th ed. 1979).
Case law supports the characterization of salary paid to a
public employee as inclusive of benefits such as retirement,
deferred compensation, vacation pay, sick pay and other such
sources of supplemental income. See Wilson v. Southeastern
Penn. Transp. Authority, 709 F.Supp. 623, 628 (Pa. 1989);
Sweptston v. State Personnel Board, 195 C.A.3d 92, 240
Cal. Rptr. 470, 472 (1987); Rock v. Burris, 564 N.E.2d
1240, 1243 (Ill. 1990); Louisiana Public Employees Council 17
et al. v. City of Lake Charles, 567 S.2d 1185, 1187 (La.
1990); But see Hilligoss v. LaDow, 368 N.E.2d 1365,
1369 (Ind. 1977); Central Dauphin Ed. Ass'n. v. Central
Dauphin School District, 367 A.2d 385, 387 (Pa. 1976);
Garian v. City of Highland Park, 439 N.W.2d 368, 370
(Mich. 1979); Taylor v. McQuire, 420 N.Y.S.2d 248, 251
(N.Y. 1979). We have thus far not located Kansas case law on
whether the term "salary" includes compensation other than the
base salary or wage. However, it is our opinion that, given
the purpose intended by K.S.A. 1991 Supp. 45-221(a)(4), actual
payments of money by a public body to a public employee as
part of a pension or retirement benefit fall within the scope
of that statute and may be regarded as delayed payments of
salary. See Swartwout v. City of New York, 369 N.Y.S.2d
865, 867 (1975); Michigan State Police Command Officers
Assn., Inc. v. State Dept. of Public Safety, 263 N.W.2d 47,
48 (Mich. 1978); Morrisey v. Curran, 302 F.Supp. 32,
35 (N.Y. 1969); Duma v. Brandenburg, 324 F.Supp. 536,
544 (N.Y. 1971); Orban v. Allen, 241 N.E.2d 378, 380
(Ind. 1968). Such payments are not reimbursement for
expenses, but rather, they constitute reward or recompense for

services performed. It is our opinion that K.S.A. 1991 Supp.
45 - 221(a)(4) requires the disclosure of pension or benefit
monies and amounts actually paid out to public employees in
return for services rendered. Thus, amounts actually paid by
the city as retirement benefits to a city employee must be
disclosed.
You raise a secondary issue with regard to disclosure of the
amount and method of distribution of a benefit when such
methodology and amounts have only been discussed and decided
upon at a meeting of an entity subject to K.S.A. 75-4317 et
seq., the Kansas open meetings act (KOMA). You note that,
unlike K.S.A. 1991 Supp. 45-221(a)(20), (21) and (22), the
KORA does not specifically provide for mandatory disclosure
of records falling under the definition set forth at K.S.A.
1991 Supp. 45-221(a)(4) when such are cited or identified in
an open meeting. We concur with that analysis. However, you
go on to state: "arguably, if a personnel record is exempt
from the disclosure pursuant to K.S.A. 45-221(a)(4)
identification or citation of the record in an open meeting
does not make the exemption inapplicable." We must take issue
with the broad implications of this argument.
K.S.A. 75-4317 et seq. recognizes that a representative
government is dependent upon an informed electorate and
declares a policy of open public meetings. K.S.A. 75 - 4318(a)
prohibits binding action by secret ballot. K.S.A. 75 - 4319, as
amended, permits some matters to be discussed behind closed
doors, however, (c) prohibits binding action during closed or
executive recesses. Thus, while K.S.A. 75 - 4319(b)(1) permits
a public agency to privately discuss a personnel matter
involving a specific individual employee, binding action by
that agency cannot occur secretly or in an executive session.
It is an oxymoron to say that you can conduct an open
discussion on closed documents without opening those
documents. It runs counter to the mandatory openness dictated
by the KOMA to read the KORA to allow discretionary
closure of records openly reviewed and discussed or officially
acted upon by a public body at an open meeting. To read these
two acts in such opposite manners is to permit the KOMA to
be thwarted by the KORA to the point of allowing public
meetings to be conducted in code; e.g. "Madam chair, I move
we vote 'yes' on document A and 'no' on document B." Such a
"discussion" violates the intent, spirit and letter of the
KOMA. By discussing the record openly, the public body
exercises its discretion in favor of opening the matter, and
thus, the record. In taking binding action on a matter, the

public body must reveal the nature of the vote and the matter
approved. If a public body wishes to close a public record,
it must do so only in accordance with statutory authority and
should refrain from waiving such closure authority through
open discussion of the record.
Thus, it is our opinion that, if a public record is
voluntarily discussed and reviewed by a public body at an open
meeting, such a record mandatorily becomes an open public
record despite possible discretionary authority under K.S.A.
1991 Supp. 45-221. This is especially true if the public body
takes official action on such a document.
Very truly yours,
ROBERT T. STEPHAN
ATTORNEY GENERAL OF KANSAS
Theresa Marcel Nuckolls
Assistant Attorney General
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