A headline in the November 30 Lexington Herald-Leader reads: "Reporting someone to Kentucky's Covid-19 tip line? Don't count on anonymity."
Or perhaps you can. It depends on which open records decision issued by the attorney general on November 24 you prefer.
The Herald-Leader story concerns open records decision 20-ORD-184 issued to Charlie Dietz.
https://ag.ky.gov/Priorities/Government-Transparency/orom/2020/20-ORD-1…
Dietz submitted a request to the Kentucky Labor Cabinet for "reports generated, logs and data collected from reports made" to the KY SAFER reporting service between March and August — along with any warning letters, violation notices, cease and desist orders, citations, or inspection reports that the Cabinet issued during the same period — regarding violations of the Governor's Covid-19 executive orders and guidelines.
The Labor Cabinet produced responsive records but redacted the names of complainants.
On appeal, the attorney general rejected the Cabinet's privacy argument — which were based on a concern for the safety and welfare of the complainants — and affirmed Dietz's right to the complainants' names.
His analysis turned on "the complete absence of any due process in adjudicating these complaints" to ensure that "those charged with non-compliance may confront their accusers" and that "the public can determine whether the Cabinet investigates every complaint of alleged noncompliance thoroughly and fairly or whether it imposes penalties, if any, in a proper and consistent manner."
The attorney general seized the opportunity — he's not the first — to throw a few well aimed barbs at the Governor's Labor Cabinet. And, having done so twice before in cases now on appeal to the Franklin Circuit Court — he reaffirmed the public's right to the complainants' names.
But wait.
Also on November 24, the attorney general issued 20-ORD-185 determining that the same Charlie Dietz was not entitled to the names of complainants in "reports, logs, and data related to public complaints reported to [the Northern Kentucky Department of Health] in regards to COVID-19/Governor's Executive Orders," along with "any warning letters, violation notices, cease and desist orders, citations or inspection reports issued by [the Department] in regards to" the same complaints.
https://ag.ky.gov/Priorities/Government-Transparency/orom/2020/20-ORD-1…
The distinguishing factor in the attorney general's analysis in these conflicting open records decisions?
The complainant "'does nothing more than alert the [Northern Kentucky Department of Health] that' it should investigate regarding the business's compliance with the executive orders" and "the Department emphasizes that due process requirements are satisfied through an existing [appeal] process."
Because "[t]he Labor Cabinet, has never claimed that it independently investigates each complaint to confirm that a 'violation' has occurred, or that the accused is granted a right to appeal that determination," the attorney general's reasoning goes, the citizen who complaints to the Cabinet is not entitled to anonymity but the citizen who complains to the Department is.
These two conflicting open records decisions are almost certainly result driven — not, again, a first. They reflect a strained reading of the privacy exception that has little or nothing to do with the test established by the Kentucky Supreme Court in the early 90s requiring a comparative weighing of the personal privacy interests implicated by disclosure of the complainants' names against the competing open records related public interest advanced by disclosure.
https://law.justia.com/cases/kentucky/supreme-court/1992/90-sc-498-dg-1…
Here, it is safe to say that the privacy interests of the complainants in the nondisclosure of their names is identical: fear of potential retribution for reporting violations. Their privacy interest must therefore be assigned equal and substantial weight.
https://www.khq.com/coronavirus/move-to-shield-privacy-of-quarantine-co…
https://www.kuow.org/stories/snitch-list-trolls-harass-those-who-report…
But how much weight should be assigned to the public's interest in disclosure of complainants' names for the sake of permitting businesses against which complaints have been made to confront their accusers and secure due process.
Resolution of this question turns on whether this is an open records related public purpose?
This, the courts have admonished through the years, is the only relevant public interest to be considered in weighing the competing private and public interests.
https://law.justia.com/cases/kentucky/court-of-appeals/1994/93-ca-00185…
"[T]he purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct."
Would disclosure of the complainants' names "further the citizens' right to know what their government is doing and subject agency action to public scrutiny."
In my view the answer is "no" in both appeals. "While there may be some merit to the assertion that the broad public interest would be served" by disclosure of complainants' names to permit business owners to confront their accusers or secure their due process rights, "this cannot be said to further the principal purpose of the Open Records Act."
Simply put, in neither case will disclosure of complainants' names advance the public's right to know what these agencies — the Labor Cabinet or the Health Department — are up to or subject their action to meaningful public scrutiny.
The relevant public interest supporting disclosure in each instance "is nominal at best."
The nominal public's interest in the complainants' names must therefore yield to the substantial privacy interest. The Labor Cabinet open records decision is incorrect — the Health Department decision is correct.
Half right is perhaps better than not right at all, but let's recognize these conflicting outcomes for what they are: an attempt to politicize the attorney general's role as open records disputes mediator — also not the first time — in order to discourage hotline reporting at the state level and to attack the administration's strategy for promoting public health and reducing the spread of COVID-19.
