Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal from the Housing Authority of Jefferson County's denial of F. Todd Lewis's September 24, 1997, request to inspect and copy:
All records generated pursuant to inspections of unit 4305 Shady Villa Dr. Apt. # 52, Louisville, Ky 40211, for the tenancy prior to the tenancy of Karen Sullivan at the same address.
Anticipating the argument that disclosure of the identity of prior tenants would constitute a clearly unwarranted invasion of personal privacy, Mr. Lewis suggested that personally identifiable information be redacted from the inspection records.
On September 26, 1997, the Housing Authority's Rental Assistance Manager, Cathy Hinko, responded to Mr. Lewis's request. She denied the request on the basis of KRS 61.878(1)(a), noting that the inspection records of Section 8 participants "reveal the housekeeping of participants . . . and are of a personal nature." In addition, Ms. Hinko stated that although she had not had an opportunity to review federal prohibitions on disclosure of Section 8 participant information, such prohibitions "do exist and are cause to deny access under the Open Records Act. " This appeal followed.
In a follow-up letter to this office dated October 30, 1997, Gerald A. Neal, an attorney representing the Housing Authority, elaborated on the Authority's position. Mr. Neal argued:
The issue of confidentiality is of utmost concern to the Housing Authority of Jefferson County. The Housing Authority will not, as a policy, confirm if a unit is occupied by a family using Section 8. It is the position of HAJC that the release of the requested information would be a violation of both participant and owner confidentiality. HAJC is subject to the Privacy Act of 1974, U.S.C. 552 et seq. and state privacy laws.
The requested inspection files related to 4305 Shady Villa Drive, Apartment # 52 contains [sic] personal information as to housekeeping habits that may reflect on the former tenant. This information associated with a date could reveal the name of the tenant and thus violate confidentiality. It does not take much for someone to ask a neighbor and secure the information. In addition, to delete information that could preclude this from occurring is overly burdensome.
We are asked to determine if the Housing Authority of Jefferson County properly relied on "the Privacy Act of 1974, U.S.C. 552 et seq. and state privacy laws" in denying Mr. Lewis's request, and in asserting that it is "overly burdensome" to delete information which might disclose the identity of former tenants. We are not persuaded that any of the arguments advanced by the Housing Authority justify nondisclosure of inspection reports for 4305 Shady Villa Drive, Apartment # 52, and find that the Authority improperly denied Mr. Lewis's request.
We begin by noting certain procedural irregularities in the Housing Authority's response. KRS 61.880(1) contains guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Although Ms. Hinko's initial response properly referenced KRS 61.878(1)(a) as the specific exception authorizing the withholding of the records, she offered the most minimal of explanations as to how the exception applies to the records withheld. Bearing in mind that the public agency has the burden of proof in sustaining its denial pursuant to KRS 61.880(2) (c), and the Kentucky Court of Appeals has declared that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," we find that the Authority's initial response was deficient.
Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). Moreover, a vague reference to "federal prohibitions" does not constitute an adequate basis for denying access to public records under the Open Records Law.
Similarly, Mr. Neal's supplemental response was procedurally deficient. Although he cited the federal Privacy Act of 1974, 5 USC Section 552a (misidentified as U.S.C. 552), Mr. Neal failed to reference the exception to public inspection codified at KRS 61.878(1)(k) by which this federal statute is incorporated into the Open Records Act. Like Ms. Hinko, Mr. Neal vaguely referenced "state privacy laws" without specifically identifying those laws. Again, this vague reference does not constitute an adequate basis for denying access to public records. Additionally, Mr. Neal rejected Mr. Lewis's suggestion that the Authority redact personally identifiable information pertaining to former tenants from the inspection reports as "overly burdensome, " but failed to cite the provision of the Open Records Law recognizing this as a basis for denying inspection, namely KRS 61.872(6), or to present clear and convincing evidence to sustain the Authority's denial. We urge the Housing Authority of Jefferson County to review KRS 61.880(1) and Edmondson v. Alig , above, to insure that future responses conform to the Open Records Act.
We next consider the substantive issues in this appeal. The Housing Authority advances the argument that disclosure of the inspection reports would violate participant and owner confidentiality. In support, Mr. Neal cites the federal Privacy Act of 1974 and "state privacy laws." The federal act, as we understand it, establishes the standard for protection of personal privacy, and provides safeguards against an invasion of privacy by:
1. Permitting an individual to determine what records relating to him are collected, maintained, used, or disseminated by federal agencies;
2. Permitting an individual to prevent records relating to him which an agency has obtained for one purpose from being used for another purpose without his prior consent;
3. Permitting an individual to review his records, and to have the information corrected or amended;
4. Requiring agencies to insure that information about individuals is current and accurate for its intended use, and adopt safeguards aimed at preventing misuse of the information;
5. Exempting agencies from the requirements of the act only in cases where there is an important public policy supporting such exemption;
6. Subjecting agencies to lawsuits for damages which occur as a result of willful or intentional acts which violate a person's rights under the act.
The act does not, in general, apply to records maintained by state or local agencies even if they are the recipients of federal funds or operate a system of records to accomplish a function required by a federal agency. Justin D. Franklin and Robert F. Bouchard, Guidebook to the Freedom of Information and Privacy Acts at § 2.04[2] (Clark Boardman Callaghan, 2d ed 1986, supplement 1997) citing
St. Michael's Convalescent Hospital v. California, 643 F.2d 1369, 1373 (9th Cir. 1981) and
Adelman v. Discover Card Services Inc., 715 F.Supp 1163, 1166 (D. Utah 1996). The act adopts the definition of agency which is found in the Freedom of Information Act at 5 USC § 552a(a)(1), and is therefore applicable only to "any executive department, military department, Government corporation, Government-controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency." Simply stated, records which do not originate with a federal agency are not protected by the Privacy Act.
As a local government agency, the Housing Authority of Jefferson County is not subject to the federal Privacy Act. Mr. Neal offers no legal authority to support its statement that the Authority is subject to the Act, or to contradict the overwhelming weight of legal authority which suggests that it is not. Assuming for the sake of argument that the Authority is governed by the Act, we are not persuaded that the requested inspection reports pertain to an individual who enjoys the protection of the Act. Rather, the reports relate to a building or structure, and more particularly to an apartment within a building or structure, to which a right of privacy can not reasonably be imputed. We therefore find that the Housing Authority improperly relied on 5 USC § 552a in denying Mr. Lewis's request.
Although Kentucky has no privacy act, the Open Records Law recognizes that disclosure of personally identifiable records in the hands of public agencies may implicate privacy concerns. KRS 61.878(1)(a) permits public agencies which receive open records requests to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In 1992, the Kentucky Supreme Court analyzed this provision in great depth, and departed from earlier open records decisions by declaring that the Act "exhibits a general bias favoring disclosure. "
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992).
The court began its analysis with the proposition that "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 function." Id. Continuing, the court observed:
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.
Id. The court also recognized that the existence of the privacy exemption "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny." Id.
Drawing on these fundamental principles, the court articulated the following standard for determining if a record may properly be excluded from public inspection pursuant to KRS 61.878(1)(a):
Given 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 Examiners at 327-328. In closing, the court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Id. at 328. In
Zink v Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825 (1994), the Court of Appeals was again presented with a challenge to an agency's invocation of the personal privacy exemption. Echoing the rule announced in Board of Examiners , the court elaborated on its "mode of decision":
Our analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination entails a "comparative weighing of antagonistic interests" in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [ Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. [Citation omitted.]
Zink at 828. Applying this standard, the court concluded that the Commonwealth of Kentucky, Department of Workers Claims, properly relied on KRS 61.878(1)(a) in denying an attorney access to injury report forms filed with the Department which contained marital status, number of dependents, wage rate, social security number, home address, and telephone number.
As we have already seen, it is by no means self-evident that the inspection reports at issue in this appeal contain information of a personal nature. The Authority argues that the reports "reveal the housekeeping of participants" which may reflect on former tenants. However, we cannot agree that housekeeping practices "touch[] upon the most intimate and personal features of private lives." Board of Examiners at 328. In other words, the privacy interest which the Authority asserts is not strongly substantiated.
The focus of the disputed records is the condition of the premises at the time of inspection, and not just the housekeeping practices of its occupants. The inspection would almost certainly be aimed at uncovering damage to the premises, including the removal or destruction of fixtures as well as conditions which might endanger the lives of the occupants, the soundness of its electrical, plumbing, and heating and cooling systems, and its overall integrity. We fail to see how a tenant can reasonably expect such matters to be treated circumspectly and in the strictest confidence.
Conversely, we believe that the public's interest in disclosure is strongly substantiated. In Zink , the Court of Appeals held that "the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Pursuant to KRS 80.380, the Housing Authority is created to insure that there is no shortage of "safe or sanitary dwelling accommodations . . . available to persons of low income at rentals they can afford[.]" Pursuant to KRS 80.500(2), the Housing Authority is charged with the duty "to prepare, carry out, acquire, lease and operate housing; [and] to provide for the construction, reconstruction, improvement, alteration or repair of any housing project or any part thereof." Disclosure of inspection reports will further the public's right to know that the Authority is properly discharging this duty without compromising a significant privacy interest. Mr. Lewis has made it abundantly clear that he is only interested in the results of inspections which took place during the tenancy of the previous occupant. He is not interested in the identity of the tenant. We leave for another day the issue of whether disclosure of the identities of Section 8 participants constitutes a clearly unwarranted invasion of personal privacy, that issue having not been presented in this appeal, although prior opinions strongly suggest that it does not. It is the opinion of this office that the public's interest in disclosure of inspection reports outweighs the nonexistent privacy interest in the condition of the premises which is reflected in those reports.
This position finds support in a number of opinions of this office. In OAG 78-828, we were asked to determine if the Louisville-Jefferson County Community Action Agency properly denied a request for records relating to locations of, and materials purchased for, winterization projects performed by the agency. At page 4 of that opinion, we noted that although the requester disclaimed any desire to obtain information relating to clients of the community Action Agency:
We know of no reason why the public may not inspect all of the files of the Community Action Agency. . . . There is no general law protecting the privacy of . . . benefits received from public agencies. On the contrary the public is granted access to such information by the Open Records Law. A receiving of public benefits is not a matter of personal privacy as referred to in KRS 61.878(1) (a).
In a subsequent opinion which is factually indistinguishable from this appeal, we were asked to determine if the Lexington-Fayette Urban County Housing Authority properly denied a request for inspection reports on a Section 8 housing unit on the basis of KRS 61.878(1)(a). The Attorney General observed:
Our review of the inspection reports of the property at 550 Jefferson Street reveals that the inspection report contains only "yes" or "no" answers as to the various items evaluated by the inspection. We cannot see that the landlord has any overwhelming right of privacy in such an inspection.
The privacy exemption of the Open Records Law applies when there is "a clearly unwarranted invasion of personal privacy. " This wording calls for a weighing of an individual's right of privacy against the public's interest in the transaction involved. We believe that the public's interest in the proper administration of this program outweighs any privacy interest that a landlord may have. Wine Hobbies USA, Inc. v. U. S. Internal Revenue Service, 502 F.2d 133 (1974).
The practical problem you indicate of persuading a private landlord to subject himself to governmental requirements in order to participate in the program does not move us to conclude that the Section VIII program must be given a blanket exemption from the Open Records Law in the absence of any state or federal statute expressly exempting the program. We assume that there are incentives for landlords to enter the program and that they do not enter it solely from humanitarian and charitable motives.
OAG 80-288, p. 3. Thus, we held that the Housing Authority improperly relied on KRS 61.878(1)(a) in denying the requester access to inspection reports. See also OAG 89-36 ("the public is entitled to inspect public records regarding improvement of private property with federal grant monies . . .;" and inspection reports of homes where work was done under those grants); 96-ORD-29 ("Disclosure of records relating to Community Development Block Grant funds is mandated by the Open Records Act . . . Where public funds go, the public's interest follows"). These opinions conclusively establish that the Housing Authority of Jefferson County must disclose the inspection reports which Mr. Lewis requested.
We reject the Housing Authority's contention that it would be overly burdensome to redact personally identifiable information from the reports. KRS 61.872(6) provides:
If the application places an unreasonable burden in producing 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 or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
This provision requires production of clear and convincing evidence that the application places an unreasonable burden on the agency. The Housing Authority has produced no evidence. Moreover, "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." OAG 81-198, p. 4. The decision to separate exempt material "rests within the sound discretion of the public agency because the exemptions contained within KRS 61.878(1) are permissive, not mandatory." OAG 89-76, p. 3. The Housing Authority has not met its burden of proof relative to the invocation of KRS 61.872(6).
The Housing Authority of Jefferson County is directed to make immediate arrangements for Mr. Lewis to inspect and copy records generated pursuant to inspections of 4305 Shady Villa Drive, Apartment # 52 for the tenancy prior to the tenancy of Karen Sullivan.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.