Request By:
Mr. Jack C. Blanton
Vice Chancellor for Administration and Official Records Custodian
Lexington Campus
110 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Dr. Marijo Ella Wilson has appealed to the Attorney General pursuant to KRS 61.880 your denial of her open records request to inspect and copy "[t]he response of Jack Blanton to the most recent records request made by Keith Schillo." Dr. Wilson's open records request was delivered to your office on May 6, 1991. On behalf of the University of Kentucky, in your capacity as official records custodian, you denied this request by letter dated May 17, 1991. In denying this request, you stated as follows:
We are declining to furnish the above-described record on the grounds that it is '. . . correspondence with private individuals . . . ;' and '[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy' (KRS 61.878(a)(g)). [Sic]
Your May 17, 1991, letter also responded to Dr. Wilson's May 6, 1991, open records request wherein she sought inspection of other documents. However, your May 17, 1991, response to her request to inspect these other documents, is not being challenged by Dr. Wilson.
Dr. Wilson filed an open records appeal with this Office by letter dated June 16, 1991, and received in this Office on July 8, 1991. Dr. Wilson argues in part that your response is a violation of the open records law and in contradiction to OAG 89-31. She requests this Office to support her right to inspect and copy the public record referred to above.
The undersigned Assistant Attorney General requested your Office for a copy of the public record involved pursuant to KRS 61.880(2) and your office complied with this request. The public record in question is a two page document in which you reaffirmed a prior denial of a request by Keith Schillo of a request to inspect certain records. This correspondence was obviously intended to give notice of final action of the University of Kentucky to Keith Schillo.
OPINION OF THE ATTORNEY GENERAL
This Office has reviewed the denial by your office of Dr. Wilson's open records request and is of the opinion that the University of Kentucky did not act in a manner consistent with the provisions of KRS 61.870 to 61.884 by denying inspection and copying of the specific record in question. Your response relied upon KRS 61.878(1)(a) and (g) in denying inspection of the two page public record. These statutory provisions provide as follows:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
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(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
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It is obvious that the documents sought for inspection by Marijo Wilson constituted "correspondence which [was] intended to give notice of final action of a public agency . . . ." KRS 61.878(1)(g). Although the correspondence to Dr. Marijo Ella Wilson arguably did qualify as "correspondence with private individuals," this statutory exemption is not applicable when the correspondence is intended to give notice of final action of a public agency, as in the instant case. KRS 61.878(1)(g). The opinion expressed herein is consistent with prior opinions of this Office. OAG 84-98; OAG 83-405. The exemption of KRS 61.878(1)(g) is not applicable in the instant situation.
The privacy exemption of KRS 61.878(1)(a) has been frequently used by public agencies to deny inspection. Nevertheless, this is the first time that this Office has been confronted with an appeal in which an agency relied upon this exemption to deny inspection of a public agency's denial letter to an open records request, contrary to the assertion of Dr. Wilson that this Office has opined on this precise factual matter in the past. The instant situation is clearly an issue of first impression involving the use by a public agency of the privacy exemption to deny inspection of this particular type of public record.
The privacy exemption of KRS 61.878(1)(a), and the other nine exemptions set forth at KRS 61.878(1), are to be strictly construed in favor of disclosure, "even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.882(4).
The only published and final Kentucky case construing the personal privacy exemption, as of the date this opinion was drafted, is
Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981). However, this Office has previously issued many opinions interpreting and applying the privacy exemption of KRS 61.878(1)(a). See, e.g., OAG 91-105; OAG 91-94; OAG 91-70; OAG 91-48; OAG 91-41; OAG 91-35; OAG 89-17; OAG 82-394; OAG 81-305; OAG 79-388; OAG 79-275; OAG 78-133.
In OAG 82-394, at p. 3, this Office stated "It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement." The undersigned Assistant Attorney General has inspected the document in question and concludes that the content of the record itself does not contain anything of a personal nature involving Keith Schillo. Indeed, the document does not even include the home address of Keith Schillo, which arguably could be expunged or deleted. See KRS 61.878(4); OAG 89-17; OAG 91-81.
In OAG 91-35, this Office discussed at length the privacy exemption to the Open Records Act. That opinion and a long line of earlier opinions indicate that the privacy exemption was intended to protect records containing intimate personal data which could be identified as applying to an individual who might be harmed by its disclosure. OAG 91-62; OAG 86-15; OAG 83-286; OAG 82-204; OAG 81-159; OAG 79-348; OAG 79-275; OAG 77-394. There is nothing in your agency's response which contains intimate personal data about Keith Schillo or any other individual.
Arguably, disclosure of this two page document would reveal the identity of the private individual who sought inspection. This Office does not find such an argument persuasive in this situation. First, the identity of Mr. Keith Schillo is already known to Dr. Wilson in view of her explicit identification of Mr. Schillo in her open records request. Second, Keith Schillo forfeited whatever privacy interests he may have had when he submitted an application to your agency to inspect public records. Keith Schillo knew or should have known that your agency was required to respond to his request in writing pursuant to KRS 61.880(1). He has no reasonable expectation that the agency's response to his request would not be disclosed to others upon request. Third, whatever privacy interest that Keith Schillo may arguably have is outweighed by the public's right to be informed of public agencies' disposition of open records requests. The privacy exemption of KRS 61.878(1)(a) may not be properly relied upon by an agency under the facts presented in this appeal.
The University of Kentucky may institute proceedings within thirty days for injunctive or declaratory relief in the circuit court of the district where the public records sought for inspection or maintained pursuant to KRS 61.880(5).