Request By:
Mr. C. Derek Reed
Assistant Director for Environmental Regulation
Louisville and Jefferson County Health Department
400 East Gray Street
P.O. Box 1704
Louisville, Kentucky 40201
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Amye B. Majors, Assistant Attorney General
Mr. Robert Prescott Ford has appealed to the Attorney General pursuant to KRS 61.880 your denial of his August 8, 1991, request to inspect a complaint filed with the Health Department against Lee Eva or Cary Lee Blanckaert. As a follow-up to this complaint, an investigation was conducted on August 2, 1991, and no violation was found.
You denied Mr. Ford's request in a letter dated August 12, 1991, relying on KRS 61.878(1)(a), (g), and (h). In support of this position, you stated:
It is the position of the Health Department that the information which you have requested is exempt from review pursuant to subsections (a), (g) and (h) of Section 1 of KRS 61.878. . . . [O]ur position is based upon the fact that the requested information is personal to the complainant, who has an expectation of privacy, and is information contained in preliminary notes and correspondence, none of which is intended to give notice of any final action on the part of the agency. See, OAG 90-12 and 86-60.
You assured Mr. Ford that the Health Department makes every effort to insure that the complaint process is not used for purposes of harassment.
In his letter of appeal to this Office, Mr. Ford argues that KRS 61.878(1)(a), which exempts from inspection "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, " is inapposite. He observes:
My request was made for the purpose of ascertaining the name of a complainant who has purposefully availed themselves of the machinery of the state in order to further their own private interests. It is believed that the person in question has filed these complaints for the purpose of harassing my client. The release of that name is not an unwarranted invasion of the privacy of such a complaining party. An innocent party needs the requested information in order to investigate their right to redress under the tort of malicious prosecution.
In addition, Mr. Ford rejects your invocation of KRS 61.878(1)(g) and (h), noting:
Both of these exemptions deal with what has been generally categorized as the 'internal work-product' of governmental agencies. These exemptions do 'not extend to the complaints which initially spawned . . . investigations.' City of Louisville v. The Courier-Journal and Louisville Times, 637 S.W.2d 658, at 660. A complaint is not correspondence with a private individual; nor is it preliminary memoranda in which the agency's opinions are expressed. Furthermore, the Kentucky Court of Appeals has held 'once final agency action is taken . . ., the initial complaints must be subject to public scrutiny. ' Kentucky State Board of Medical Licensure v. The Courier-Journal and Louisville Times Company, 663 S.W.2d 953, at 956. Here, final agency action was taken in that the complaint was investigated and a decision was made that no violation existed. That decision (that there was no violation) terminated the matter, thus, there was final agency action.
He asks that we review the decision of the Louisville and Jefferson County Health Department to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that although the Department properly denied Mr. Ford's request for the name of the complainant, it is required to release the complaint itself.
OPINION OF THE ATTORNEY GENERAL
As Mr. Ford correctly observes, this Office, and the courts of the Commonwealth, have consistently held that complaints which initially spawn an investigation may not be excluded from inspection because the public has a right to know what complaints have been made and the final action taken. City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal And Louisville Times Company, Ky.App., 663 S.W.2d 953 (1984); OAG 83-332; OAG 85-77; OAG 85-144; OAG 86-46; OAG 87-32. We have just as consistently held, however, that the complainant's identity is exempt from public inspection, except upon court order, pursuant to KRS 61.878(1)(a). OAG 84-315; OAG 85-126; OAG 85-136; OAG 86-60; OAG 89-52; OAG 90-12. We see no reason to depart from this view today.
It is instructive to quote, at length, an earlier opinion in which this question was raised. In OAG 84-315, we reasoned:
[A]lthough in City of Louisville and Kentucky State Board of Medical Licensure, supra, the Court of Appeals stated that complaints spawning an investigation are open once final action is taken, neither opinion discussed the release of the complainant's name. This question apparently was not considered by the Court.
Second, the standard applied to the KRS 61.878(1)(a) privacy exemption is a balancing of interests. Specifically, the balance is between the protection of an individual's private affairs from unnecessary public scrutiny against the preservation of the public's right to governmental information. In this case, the nature of the withheld information (the complainant's name) obviously identifies the complainant and disclosure could possibly harm the complainant through harassment. Additionally,the complainant's identity is protected by the Department's policy of keeping complainant's names confidential. This policy is illustrative of the chilling effect which could occur if this information was open to public inspection.
It is therefore our opinion that disclosure of the complainant's name would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to governmental information. Release of the complainant's name would effectively chill any reporting of violations to the [public agency] . . . Release of the complaint with the complainant's name deleted would effectively protect the complainant while allowing the party against whom the complaint is made access to information concerning the alleged violation which resulted in agency action. Pursuant to KRS 61.878(4), it is therefore our opinion that the citizen's complaint should be released (since final action has taken place) but the name of the complainant should be deleted pursuant to KRS 61.878(1)(a).
We believe that this opinion, as well as subsequent opinions in which it is cited with approval, are dispositive of the instant appeal. Although Mr. Ford's purpose in seeking access to the requested record may be compelling, this Office has repeatedly held that the purpose for which an individual makes a request under the Open Records Act is not relevant. OAG 78-231; OAG 79-275; OAG 81-345; OAG 82-234; OAG 84-93; OAG 85-120; OAG 86-36; OAG 89-79; OAG 91-129. We acknowledge that Mr. Ford's concerns are valid, but believe that to compel disclosure of the complainant's name in this instance would establish a dangerous precedent, the likely result of which would be a decrease in the reporting of violations. In addition, we acknowledge that there are occasions when a complainant has a reduced expectation of privacy, as, for example, where the individual has testified in an open hearing. These individuals do not have a cognizable personal privacy interest in keeping their identities confidential. OAG 91-94. However, as a general rule, we believe that the regulatory process would be seriously impaired if we established a blanket rule requiring the release of the identities of complainants where no violation is found.
It is therefore the opinion of the Attorney General that the Louisville and Jefferson County Health Department must release the complaint which spawned the investigation of Mr. Ford's client's property. However, the Department may adopt a policy of withholding the names of the complainants. This information should be masked so as not to disclose his or her identity pursuant to KRS 61.878(1)(a) and KRS 61.878(4).
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Robert Prescott Ford. Both Mr. Ford and the Health Department may challenge it by instituting proceedings in the appropriate circuit court pursuant to KRS 61.880(5).