Request By:
Mr. Jim F. Paxton
Urban Affairs Reporter
Lexington Herald
239 West Short Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
In April of this year you wrote the Attorney General concerning what appeared to you to be a conflict between Kentucky's Open Meetings Law and the Open Records Law. You stated that the Lexington-Fayette Urban County Council's services committee requested the Division of Housing Services to give it a list of every applicant, their qualifications, which applications were accepted, which ones were denied and why. You explained that the Lexington Division of Housing Services processes applications for Federal Community Development Block Grant money for housing rehabilitation grants and loans in low income neighborhoods. You, as a reporter for the Lexington Herald, requested to be allowed to inspect the information provided by the Division of Housing Services to the Council Committee.
On April 24, 1979 we wrote you a letter in which we expressed the opinion that the information you desired to inspect was not exempted under the Kentucky Open Records Law and should be made available to you. On May 7, 1979 the Honorable William M. Lear, Jr., Commissioner of Law of the Lexington-Fayette County Government issued an opinion that the records described above were exempt under KRS 61.878(1)(a) because they contain information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. We considered this exemption in our letter of April 24, 1979 and reached the opposite conclusion. At your request we are reviewing the matter again in the light of Mr. Lear's well reasoned opinion.
Since Mr. Lear's opinion analogizes the circumstances of your requested material to welfare program cases, we have taken a close look at the Community Development Block Grant Program to see if it is in fact of the same genre as concerning the privacy rights of applicants for benefits under the program. We find that the federal participation in the program is authorized by 42 U.S.C. § 5304 and that the purpose of the program is to provide loans and grants to owners of property in low income areas. The owners of the property may or may not reside in the property. Some of the owners may be landlords renting one or more units to tenants. If the loan is for the improvement of property designed for residential use for eight or more families, it is required that certain labor standards and wage rates must be followed in the improving of the property. 42 U.S.C. § 5310. Discrimination on the ground of race, color, national origin, or sex will cause disqualification from the program. U.S.C. §§ 5309 and 5311. Because of these considerations we believe that the public's interest in the proper administration of this program outweighs any privacy interest that an applicant for benefits under the program may have.
Wine Hobbies U.S.A., Inc. v. U. S. Internal Revenue Service, 502 F.2d 133 (1974).
We believe that the analogy between the Community Development Block Grant Program and the ordinary welfare program is illtaken. The applicants under this program must be property owners. They may be poor people who own their own homes or they may be slum landlords. In any event, we believe that the applications they make for benefits under the program are not exempt from public inspection under the Open Records Law because they infringe on personal privacy. The applicant is required to bare all of his circumstances to the agency. We do not believe that legitimate applicants will be deterred from applying for the benefits of the program simply because there is the possibility that some person or the public generally has access to his application. Of course, this is the sort of question where honest opinions may differ, but it is the opinion of the Attorney General on your appeal to him under KRS 61.880 that the Lexington-Fayette County Government has improperly withheld inspection of the above described records.
As provided by KRS 61.880(5) we are notifying both the requester and the agency of this opinion. The agency may institute proceedings within 30 days for injunctive or declaratory relief in the circuit court. If the agency continues to withhold the record, the requester may institute court proceedings.