Request By:
IN RE: John F. Zink/Department of Workers' Claims
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Department of Workers' Claims relative to Mr. John F. Zink's June 19, 1992, request to inspect certain records in the Department's custody. Those records are identified as the "First Report of Injury," or S.F.1 forms, filed and received by the Department in the four-week period prior to the date of inspection.
On behalf of the Department of Workers' Claims, Ms. Valerie L. Salven, General Counsel, responded to Mr. Zink's request. In a letter dated July 1, 1992, she indicated that the Department would provide him with a computer printout showing the employee's name, county of injury, and number of lost work days as reflected on the S.F.1's for a four-week period. Continuing, she advised:
If this accommodation is not acceptable, however, we must deny your request. . . . This request is denied pursuant to KRS 61.872(5) as placing an unreasonable burden on this agency in producing voluminous records. Two employees process over 11,000 open records requests received by this agency in a year. During the period of time from July 1, 1990, to June 30, 1992, there were 69,645 'First Reports of Injury' filed with the Department of Workers' Claims. Unless and until a formal application for adjustment of claim (Form 101 or 102) has been filed by the injured worker, this agency does not release information contained on the 'S.F.1' form concerning the worker's home address, home telephone number, social security number, or wage rate unless the person requesting the records has supplied this agency with a waiver or authorization signed by the worker in question.
In addition, Ms. Salven relied on KRS 61.878(1)(a), (g), and (h) in denying Mr. Zink's request, noting that once a workers' compensation claim has been filed by a worker, the S.F.1 becomes part of the file which is available for inspection.
In his letter of appeal to this Office, Mr. Zink rejects Ms. Salven's argument that inspection of the requested records would place an unreasonable burden on the agency, since he has indicated his willingness to inspect the records at the agency's offices at a time and date agreeable to the agency. Moreover, he contends that the Department's reliance on KRS 61.878(1)(a), (g), and (h) is misplaced. With respect to KRS 61.878(1)(a), Mr. Zink maintains that "[t]his basis for denial is contrary to the language and rationale set forth in OAG 89-76 and OAG 84-51." He objects to Ms. Salven's invocation of KRS 61.878(1)(g) and (h), noting that the S.F.1 forms are not in the nature of "correspondence with private individuals" inasmuch as KRS 342.038 requires that an employer file the form when an employee is injured. Nor, he argues, is the S.F.1 a preliminary document within the meaning of KRS 61.878(1)(h). Instead, he asserts that the S.F.1 forms, "like police accident reports, merely report a factual occurrence to the agency."
The issue presented in this open records appeal is whether Ms. Salven has established, by clear and convincing evidence, that Mr. Zink's application places an unreasonable burden on the Department of Workers' Claims in producing voluminous public records. 1 As a corollary of this issue, we must determine whether the requested records contain exempt, along with nonexempt, information, thus necessitating redaction of the exempt information, and exacerbating the burdensome nature of the application. For the reasons set forth below, we conclude that the department sustained its burden of proof, and therefore properly denied Mr. Zink's request.
KRS 61.872(5) provides:
If the application places an unreasonable burden in producing voluminous public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence.
The purpose and intent of the Open Records Act is to permit "the free and open examination of public records. " KRS 61.882(4). However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he wishes to review. OAG 89-81. Where the records sought are of an identified, limited class, the request satisfies this condition. If an agency then invokes KRS 61.872(5) to authorize nondisclosure of the requested records, it bears the burden of establishing, by clear and convincing evidence, that the request places an unreasonable burden in producing voluminous public records.
This burden is not sustained by the bare allegation that the request is unreasonably burdensome. As we noted in OAG 77-151, at p. 3:
Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of the law. . . . We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for inspection.
Thus, in OAG 89-79, we held that the Department of Transportation violated the Open Records Act by failing to document, by clear and convincing evidence, how the subject request placed an unreasonable burden on it. Mere invocation of the cited exception does not sustain the agency's burden.
Only if the agency has adduced evidence which would warrant this Office in finding that the burden is indeed an unreasonable one, will the Attorney General uphold its action. In OAG 89-88, we ruled that the Department of Insurance had sustained this burden. The Department indicated that the requested records consisted of some 800 documents, and explained the difficulty of separating confidential from nonconfidential material. Similarly, in OAG 91-58, we held that the Louisville/Jefferson County Office of Economic Development properly denied a request for "all notes, letters, memos, and studies which might contain information about the exchange of information between the Office of Economic Development" and various offices and agencies, and that it sustained its burden of proof under KRS 61.872(5). That agency explained that the requested documents might be contained in the files of as many as thirty-one employees, located in six different offices throughout the city and county, and again described the difficulty in separating exempt from nonexempt materials.
In her letter of denial, Ms. Salven indicates that the Department of Workers' Claims received 69,645 S.F.1 forms in the period from July 1, 1990, to June 30, 1991, an average of some 5,803 forms per month. Each form contains information which implicates privacy concerns, including but not limited to the injured employee's home address, home telephone number, social security number, and wage rate. She further indicates that although the Department employs two individuals to handle records requests, these individuals process over 11,000 requests per year. She thus describes with specificity the actual volume of records implicated by Mr. Zink's request and the problems associated with redacting exempt information from those records.
When a request is made for voluminous records containing both exempt and nonexempt information, this Office has recognized that the burden on the agency in redacting the exempt information may be an unreasonable one. At page 12 of OAG 90-24, we held:
Where the request for records is broad . . ., and involves numerous records in which confidential information is commingled with information that might be releasable, the difficulty of separation of confidential from releasable information, we believe, constitutes an unreasonable burden upon the agency within the meaning of KRS 61.872(5).
Given the confidentiality of much of the information which appears on the S.F.1, and the volume of records implicated by the request, we conclude that Ms. Salven has adduced sufficient evidence to warrant this Office in finding that Mr. Zink's request places an unreasonable burden on the Department, and we uphold its action.
Although this Office has never addressed the specific question raised in this appeal, we have repeatedly recognized that KRS 61.878(1)(a) authorizes the nondisclosure of such personal information as an individual's name, address, marital status, and social security number. See, e.g., OAG 83-344 (upholding agency's denial of ambulance run reports containing information of a personal nature); OAG 86-25 (sustaining agency's denial of fire department runs containing personal information) . In each of those opinions, the Attorney General found "no compelling reason why the interest of the public to know all the aforementioned requested information on an ambulance run [or a fire run] outweighs the right of the individual involved to personal privacy. " OAG 83-344, at p.2. In contrast, we have recognized, with respect to accident reports and other police records, that "when . . . [an individual] enters on the public ways, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent." OAG 76-511, at p. 4.
In
Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992), the Kentucky Supreme Court determined that disclosure of information contained in a complaint file maintained by the Board of Examiners would constitute a clearly unwarranted invasion of personal privacy. It is instructive to quote at length:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.
Board of Psychologists, supra, at 327, 328.
With respect to the public purpose served by the release of records of a public agency, the Court observed:
The public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.
Board of Psychologists, supra, at 328. The fundamental purpose of the Department of Workers' Claims is to administer claims and insure compliance with the insurance, self-insurance, and rehabilitation provisions of the Act. KRS 342.228. Thus, the public's interest is served by the release of only those records which demonstrate that the Department is fulfilling its intended purpose, such as, for example, the number of S.F.1's filed, the employee's name, and location of injury. The release of records of this nature permits the public to monitor the operations of the Department of Workers' Claims. Mr. Zink has presented no other public interest served by disclosure of the S.F.1 form in its entirety prior to the filing of a formal application for adjustment of claim, and we have found none.
The counterveiling privacy interest is easily identifiable. Much of the information which appears on the S.F.1 is of a personal nature. As noted, this Office has consistently recognized that information which touches upon the personal features of private lives, including home address, home phone number, social security number, and marital status, may properly be withheld under KRS 61.878(1)(a). In Board of Examiners, supra, at 328, the Supreme Court admonished, "[t]he policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity. . . ." In our view, that purpose is not served by the release of information which touches on the private lives of individuals who are injured in the workplace, and whose injuries are reported to the Department by their employers pursuant to KRS 342.038. We therefore conclude that the Department properly invoked KRS 61.878(1)(a), and sustained its burden of proving that Mr. Zink's application to inspect public records places an unreasonable burden on it pursuant to KRS 61.872(5). Since we believe these provisions are dispositive of the present appeal, we do not address the applicability of KRS 61.878(1)(g) and (h).
We believe that the authorities cited by Mr. Zink are inapposite. OAG 89-76 is distinguishable from this appeal in that it deals with a request to inspect all automobile accident reports for a four-week period. As we observed in that opinion, such records have been deemed open records by this Office, and must be made available for inspection. Moreover, we found that the number of records implicated by the request, approximately 200 reports, was not so voluminous as to constitute an unreasonable burden. Similarly, OAG 84-51 is distinguishable insofar as it relates to a licensing agency's duty to disclose a licensee's work address, if it is available, and his or her home address, if it is not. That opinion was premised on the notion that 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 a license. The license is therefore a public document. We do not believe that the logic of that opinion should be extended to this case.
Ms. Salven has offered to provide Mr. Zink with a computer printout containing the employee's name, county of injury, and number of lost work days which appear on the S.F.1's for a four-week period. This is consistent with OAG 89-88, in which we recognized, at p. 4, that furnishing a summary of the requested records, although not a substitute for production of the original documents, "indicate[s] careful consideration of the request, and an effort to provide assistance." In the alternative, she proposes that he inspect a limited number of S.F.1's in which the confidential information has been deleted. This alternative is consistent with OAG 90-24, in which we held that a request to inspect five police dispatcher's log cards was reasonable, and confidential information could be deleted without imposing an unreasonable burden on the public agency. Thus, she has indicated her willingness to attempt to reach a compromise in this matter. We urge the parties to continue to work in this spirit of cooperation toward a resolution of their dispute.
Mr. Zink may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
Footnotes
Footnotes
1 KRS 61.872(5) was amended by the 1992 General Assembly, and the word "voluminous" was deleted from the provision. Because Mr. Zink's request was filed before the effective date of that amendment, our review is based on the statute as it appeared prior to amendment.