Request By:
Ms. Sharon M. Weisenbeck, MS, RN
Executive Director
Kentucky Board of Nursing
4010 Dupont Circle, Suite 430
Louisville, Kentucky 40207-4875
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Susan J. Hockenberger, Interim Dean of the Lansing School of Nursing at Bellarmine College, has appealed to the Attorney General pursuant to KRS 61.880 your denial of her September 19, 1991, request for access to "certain information on Kentucky nurses. " Specifically, Ms. Hockenberger asks to inspect information maintained in electronic format, which is obtained by the Board from license renewal forms. She requests the name and addresses of all Kentucky nurses, and, in addition, the following information:
1. Highest educational level attained, particularly BSN, MSN and doctoral degrees.
2. Employment information, such as county of employment and place of employment.
3. Area of practice/specialty.4. Age, either by decade (i.e., 30 to 39 years old) or by specific year of birth (i.e., 1955).
5. Gender. 6. Race.
You denied Ms. Hockenbeiger's request in a letter dated September 25, 1991. Relying on KRS 61.878(1)(a), you observed:
All of the information you request is information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In support of this position, you cite OAG 87-84, OAG 87-77, and OAG 85-109. Additionally, you note that Ms. Hockenberger's request "is for information and not specifically for documents."
Ms. Hockenberger questions your reliance on KRS 61.878(1)(a), and asks this Office review your actions to determine if you acted consistently with the Open Records Act. For the reasons set forth below, we conclude that your actions were only partially consistent with the Open Records Act.
OPINION OF THE ATTORNEY GENERAL
Among the records which may be withheld from inspection are those described in KRS 61.878(1)(a) as "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This Office has repeatedly recognized that the names of licensed nurses and their work addresses cannot be withheld from the public. OAG 78-497; OAG 82-394; OAG 82-524; See also , OAG 80-474; OAG 84-51. In the event that the only address furnished is the home address of the licensee, it should be made available to the public. OAG 82-524.
Simply stated, the name and address of a person licensed to practice a profession is not a matter of personal privacy. In OAG 82-524, at p.2, the Attorney General opined:
The purpose for licensing a profession is to protect both the public and the profession by assuring that persons who hold themselves out as qualified to practice the profession meet certain minimum standards of training and qualification. A license is in the nature of a special privilege, entitling the licensee to do something that he would not be entitled to do without the license. 51 Am.Jr.2d [sic], Licenses and Permits, § 1, p.7;
City of Louisville v. Sebree, Ky., 214 S.W.2d 248. A license is, therefore, a public document which must identify the licensee to the public and, we believe, the minimum identification should be the name and address of the licensee.
Clearly, the Board of Nursing erred in refusing to release the names and addresses of nurses licensed by the Commonwealth of Kentucky.
Until recently, this Office took the position that records containing information bearing on a public employee's prior work experience and educational qualifications, such as a resume, were exempt from disclosure under KRS 61.878(1)(a). OAG 84-19; OAG 87-77; OAG 87-84. However, we have modified this view. In OAG 89-90, we held that evaluation of a public employee's work experience and education does not constitute an invasion of privacy. At page eight of that opinion, we stated:
[I]nspection of information regarding prior work experience reasonably related to qualifying for a public position, such as that of a teacher, as well as educational qualifications pertinent to public employment - meaning educational levels achieved - does not involve the release of information of a personal nature such that disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, within the meaning of KRS 61.878(1)(a).
Clearly, "one does not typically work [or attend school] in secret." OAG 89-90, at p.7. See also , OAG 91-48. Under this line of reasoning, records disclosing place of employment and educational qualifications can not properly be withheld from public inspection.
We believe OAG 89-90 is dispositive of that portion of Ms. Hockenberger's appeal pertaining to educational levels attained, place of employment, and area of practice. In view of the policy expressed in our early opinions, which recognize that a license is in the nature of a privilege and is intended to protect the public and the profession by assuring that persons engaging in the profession meet certain standards of training, we believe that the requested information must be released. We note that the opinions you cite in support of your position that all of the information sought by Ms. Hockenberger is shielded from disclosure by the privacy exemption, to wit OAG 87-84; OAG 87-77; and OAG 85-109, were modified by the subsequent opinion upon which we rely.
With respect to the remaining information requested, this Office has held that a licensing board, such as the Kentucky Board of Nursing, may withhold from public inspection any record which falls within the exceptions to the Open Records Act contained in KRS 61.878. OAG 80-474. Although the Board incurs no liability for the disclosure of records which are otherwise exempt, it must "act[] in good faith and according to a consistent policy." OAG 80-474, at p.1. In OAG 78-497, at p.2, we observed:
A public agency may withhold from public inspection records containing information of a personal [nature] where the disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a). However, Kentucky does not have a statute forbidding the disclosure of information of a private nature. A public agency may disclose anything in their records unless there is a specific statute, regulation or ordinance which makes the material confidential by law.
The Board may therefore adopt a policy of withholding information pertaining to the age, gender, and race of its licensees.
To briefly summarize, it is the opinion of this Office that the Kentucky Board of Nursing must release the names and addresses of all nurses licensed through the Board pursuant to OAG 78-497 and the authorities cited. The Board must also release educational qualifications and employment information of licensees, including place of employment and area of practice, pursuant to OAG 89-90 and OAG 91-48. The Board may, however, withhold that information requested by Ms. Hockenberger which is clearly personal in nature, such as age, gender, and race, but the Board is not required to do so under the rule announced in OAG 78-497 and OAG 80-474.
In closing, we observe that Ms. Hockenberger's letter contains a request for information, rather than a request to inspect records. The Open Records Act was not intended to serve as a means of commanding compilation and production of specific information, but was intended to provide a mechanism for inspection of reasonably described records held by public agencies. OAG 76-375; OAG 79-547; OAG 89-77; OAG 89-81. Because you did not rely on this line of authority in denying Ms. Hockenberger's request, we must assume that you chose to treat her letter as a request for records rather than a request for information.
Finally, the parties to this appeal should be aware that if this is a request for records in an electronic format, as opposed to a hard copy, KRS 61.960, et seq. , governs their release. This relatively new statute provides for public access to governmental databases. Unlike the typical open records request, the question of whether to release governmental databases turns on the nature of the purpose for which it is requested. If the purpose is commercial, the agency and the requester must enter into a contract for the use of the database at a specified fee. KRS 61.970(2). A separate fee provision applies if the requester's purpose is noncommercial. KRS 61.975. We urge you to review this provision if Ms. Hockenberger indeed seeks access to your agency's electronic database.
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Susan J. Hockenberger. Ms. Hockenberger and the Kentucky Board of Nursing may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).