Request By:
Mr. Robert M. Wilson
Personnel Director
Bell-Whitley Community Services Agency, Inc.
P.O. Box 159
Pineville, Kentucky 40977-0159
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. W. Rick Garr has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect certain records in your custody. In his letter of appeal to this office Mr. Garr describes the documents in question as records pertaining to the names of the 43 persons participating in the agency's Summer Youth Employment Program and records relative to the names and payroll records of a director and two counselors.
Mr. Garr initiated his request to you and your organization by means of a letter or memorandum signed by him and dated August 26, 1986, which stated in part as follows:
"Please consider this a formal request under the Kentucky open records law for the Daily News to have access to the pertinent records involving the summer youth jobs program, especially dates of hiring, names of employees hired, sites of their jobs, etc.
"Also, please provide to us a copy of, or access to, the written criteria (family income, etc.) used to select persons for such summer employment."
You replied to Mr. Garr in a letter dated September 3, 1986, and provided him with certain information pertaining to the Summer Youth Employment Program. You concluded your letter with the statement, "We are sorry, the names of the participants are confidential. "
The undersigned Assistant Attorney General talked with you by telephone on September 15, 1986. You advised that neither Mr. Garr nor anyone associated with his newspaper has submitted to you a written request relative to the names and payroll records of a director and two counselors in the Summer Youth Employment Program. Your refusal to release the names of the program participants was based upon considerations of privacy and pursuant to a policy developed by the Eastern Kentucky Concentrated Employment Program, Inc. [EKCEP] and the agencies with whom it subcontracts. That policy requires, basically, that information about applicants, participants or their immediate families be kept confidential.
It appears that EKCEP is a private non profit corporation which administers various federally funded employment programs for the state and it subcontracts with various local agencies such as yours to handle these employment programs on the local level. People are certified to your agency by the State Employment Service Office in Middlesboro as eligible for the program in question.
OPINION OF THE ATTORNEY GENERAL
At the outset we direct your attention to KRS 61.880(2) which provides in part that a copy of the written response denying inspection in whole or in part of a public record shall be forwarded immediately by the public agency to the Attorney General. Thus, as a public agency you should have sent a copy of your letter of September 3, 1986, addressed to Mr. Garr, to this office.
Mr. Garr in his letter of appeal asks this office to review the denial of his request to inspect and copy documents pertaining to the names and payroll records of a director and two counselors in the youth employment program. While he may have asked some person or some agency for such records, there is no indication that any such specific written request has been filed with you or your agency. His letter of August 26, 1986, contained no such request to inspect and copy those particular records and documents.
KRS 61.880(2) in part provides that the Attorney General, if requested by the person seeking inspection, shall review the denial and issue a written opinion stating whether the public agency properly denied the request. In connection with the precise question of the availability of documents pertaining to names and payroll records of a director and counselor, there has been no denial of such a request by you as apparently no such request has been made to you or your agency. Mr. Garr will have to either specifically make such a request to you and await your decision, or if such a request has been made to and denied by another public agency, he will have to appeal from that agency's denial.
Among the public records which may be excluded from public inspection in the absence of an order of a court of competent jurisdiction authorizing inspection are those described in KRS 61.878(1)(a) as follows:
"Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
Apparently there is no specific statutory provision making the names of persons participating in the Summer Youth Employment Program confidential. In any event, a policy has been adopted whereby your agency and others handling such programs have agreed that in the interests of preserving personal privacy such information will not be released without the permission of the program applicants or participants or only to the extent necessary for the proper administration of the law.
Although some federal cases have adopted another test relative to privacy, this state's courts in construing the privacy exemption of the Open Records Act have applied the "test of balancing the interests of the parties as well as those of the public measured by the standard of a reasonable man." See Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109, 111 (1981) and OAG 86-28, copy enclosed.
While the requesting party may be interested on behalf of the public generally in the proper utilization of public funds and the proper administration of public programs, revealing the names of persons at this time who are not parties to this action or to any action challenging or questioning their right to participate in this program serves no public interest which would be greater than the privacy of those program participants. Any evidence of wrongdoing relative to the administration of this program and those participating in it should be reported to the local prosecutorial authorities, to the Bell-Whitley Community Services Agency, to the Eastern Kentucky Concentrated Employment Program in Hazard or to the appropriate persons in the Cabinet for Human Resources in Frankfort for investigation and proper disposition.
It is therefore the opinion of the Attorney General that a public agency may adopt a records and documents policy pertaining to the names of persons involved in a Summer Youth Employment Program for low income persons whereby it prohibits the release of the names of program applicants and participants under the authority of KRS 61.878(1)(a).
As required by statute a copy of this opinion is being sent to the requesting party, Mr. W. Rick Garr, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880.