Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Transportation Cabinet's partial denial of the open records request of J. Clay McKnight, Scott County Attorney, dated November 14, 1997, to inspect:
1. All actual returns of "survey results" as mentioned at page 4, 3<rd> paragraph of the Revised Meeting Minutes of the third Advisory Committee Meeting held for the US 460 Corridor Needs Study held at the offices of Bluegrass Area Development District, in Lexington, Kentucky on September 22, 1997 at 1:30 p.m. (a copy of which is attached hereto as Exhibit "A.")
Page 4, 3<rd> paragraph of the minutes referred to and attached to Mr. McKnight's request as Exhibit "A" states:
Ms. Offutt questioned the survey results included in the US 460 study that indicated 59 percent of the people who indicated that they lived along US 460 were in favor of 2 or 4-lane improvements. Ms. Offutt said it was her impression (and an impression previously noted by Mr. Williams) that most of the people living along US 460 were not in-favor of improvements that would drastically change the highway corridor. Mr. Williams advised that they would go-back and review the survey responses to make sure that the numbers were accurately reported. Note: A review of the survey results indicated that the number reported in the appendix to the report was accurate. It should be noted, however, that many of the individuals who indicated that they "lived along US 460" actually lived in Georgetown or Paris (but still along or in the vicinity of US 460). To better report the opinion of people living along US 460 in the study corridor, this set of graphs will be replaced by a set showing the responses of those people who reported that they lived in Newtown or Centerville .
(Emphasis in the original.)
In his letter of appeal to this office, dated December 1, 1997, Mr. McKnight stated, as of that date, no response or reply to his November 14, 1997 open records request had been received from the Transportation Cabinet.
After receipt of the letter of appeal, we sent "Notification of Receipt of Open Records Appeal" to the Transportation Cabinet and enclosed a copy of Mr. McKnight's letter. As authorized by KRS 61.880 (2) and 40 KAR 1:030, Section 2, J. Todd Shipp, Assistant General Counsel, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal. In the response, Mr. Shipp stated:
In response to the above appeal, the Transportation Cabinet received approximately 575 returned surveys. On these are the names and addresses of those responding. The Transportation Cabinet argues that to disclose their identities would constitute a clearly unwarranted invasion of privacy. See, 95-ORD-167, OAG 92-75, 95-ORD-151, 96-ORD-176, Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994).
Second, the survey results, are available for inspection and copying at Mr. McKnight's expenses.
By letter dated January 26, 1998, Mr. McKnight stated that on January 16, 1998, he met with representatives of the Cabinet to review the "Survey Results," which were provided for his inspection, but with the names and addresses of individuals responding masked.
In his January 26, 1998 letter, Mr. McKnight presented the following background information relating to his request:
To appreciate my request 1 feel some background is necessary. Briefly, the Transportation Cabinet is contemplating road improvements along U. S. 460 from Paris to Georgetown, a distance of 14.20 miles. To assist the Cabinet in its analysis, they hired Wilbur Smith Associates, Consulting Engineers and Planners to conduct a study. The Final Result being an extensive bound document styled "U. S. 460 Corridor Needs Study" (Exhibit "A")
In this voluminous study are references to "identification of corridor needs," which then explains that part of the conclusion reached by the Cabinet, was based upon a "U. S. 460 Highway Needs Questionnaire" (Exhibits "B" and "C"). It is our belief that the Cabinet failed to properly conduct the Questionnaire survey by failing to include all of the homeowners along the U. S. 460 corridor who reside in Scott County. The fact that the Highway Needs Questionnaire was omitted from the citizens along U. S. 460 in Scott County has been acknowledged by the Cabinet. Because of the conclusions reached by the study, it is most important that Scott County know who was and was not included in the study.
Mr. McKnight argues that there was not any expectation of privacy by any person receiving and returning the Highway Needs Questionnaire. He enclosed copies of each of the two Highway Needs Questionnaires distributed to the public which solicited input on "study issues." In support of his argument, he points out the following statement found on one of the Questionnaires:
Your name is needed to validate the results of this survey. The address and phone number are optional and will only be used if we have questions about a response or wish to provide you with additional information on the study.
We are asked to determine whether the Cabinet properly relied upon KRS 61.878(1)(a), in denying Mr. McKnight's request to inspect the survey results without the names being masked. For the reasons which follow, it is the conclusion of this office that the Cabinet improperly relied upon KRS 61.878(1) (a) to withhold the names of the individuals responding to the survey. Disclosure of the individual's names, under the facts presented, would not constitute a clearly unwarranted invasion of personal privacy, subject to nondisclosure under KRS 61.878(1)(a).
We begin by noting that the Cabinet's failure to respond to Mr. McKnight's original request within three days was a procedural violation of the Open Records Act. KRS 61.880(1) sets forth procedural 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.
Thus, subsection (1) requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days, and indicate when the records will be available for inspection, or cite the specific exception to public inspection authorizing nondisclosure.
In his letter of appeal to this office, dated December 1, 1997, Mr. McKnight stated, as of that date, no response or reply to his November 14, 1997 open records request had been received from the Transportation Cabinet. Thus, the failure of the Cabinet to timely respond to the initial request constituted a procedural violation of KRS 61.880(1).
We now turn to the substantive issue. Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection, are those records 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. " OAG 91-94.
The courts have developed a two part analysis for determining the propriety of a agency's invocation of KRS 61.878(1)(a). In
Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1995), the Court of Appeals adopted the test first set forth by the
Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992):
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. Id. at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
After finding that information such as home address, telephone number, and social security number is "generally accepted by society as details in which an individual has at least some expectation of privacy, the Zink court focused on the second part of the two part privacy analysis: whether an invasion of this privacy interest is warranted by a superior public interest in disclosure. The court observed:
While binding precedent has yet to clearly speak to the point, we believe 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. This is the approach the United States Supreme Court has taken in a similar analysis of requests under the Freedom of Information Act (FOIA). See Dept. of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 774-75, 109 S. Ct. 1468, 1482-83, 103 L. Ed. 2d 774, 796-97 (1989). As stated in Board of Examiners [of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992)], "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 to an agency steadfastly to pursue the public good. " 826 S.W.2d at 328. At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Mr. McKnight was allowed to inspect the survey results, but with the names and addresses of the individuals responding to the survey masked. In this appeal, he is seeking to inspect each survey with the name of the responding individuals disclosed.
Applying the Zink test to the instant case, this office has previously recognized that "a person's name is personal but it is the least private thing about him. . . . The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order (i.e., adoption records)." OAG 82-234; 93-ORD-32.
Recognizing that a person's name is information in which a person has a cognizable, but limited, privacy interest, we proceed to a determination whether disclosure of this information constitutes a clearly unwarranted invasion of personal privacy. This determination turns on whether the privacy interests implicated are superior to the public interest in disclosure. 96-ORD-123.
The preamble to the questionnaire stated the Cabinet "is conducting a planning and feasibility analysis of highway improvements along U.S. 460 from Georgetown to Paris in scenic central Kentucky." The questionnaire also contained a section in which the individual responding was to provide his or her name. This section stated:
Your name is needed to validate the results of this survey. The address and phone number are optional and will only be used if we have questions about a response or wish to provide you with additional information on this study.
In addition to the questionnaire and study, public meetings were held regarding the issue. The minutes of the third Advisory Committee Meeting, quoted above, indicate questions were raised as to the accuracy or validity of the results of the study as reported by the Cabinet. One question raised was the accuracy of the study's representation that 59 percent of the people who indicated that they lived along U.S. 460 were in favor of 2 or 4 lane improvements. One citizen stated it was her impression that most of the people living along the corridor were against such improvements. A Cabinet note to the minutes states that many of the persons who indicated in the study that they "lived along U.S. 460" actually lived in Georgetown, Paris, or the "vicinity" of the corridor.
Under the facts of this case, we conclude that the public's interest in disclosure outweighs any privacy interest the individuals responding to the survey may have in the nondisclosure of their names.
The public interest to be served by disclosure of the information would be to informed the citizens as to what their government is doing. Disclosure of the names would enable the public to determine the responding individual's relationship to the contemplated highway improvements and whether that relationship was accurately reflected in the Cabinet's report of the study. The public has the right to know if the public agency's representation of the study's results, as reported, was accurate. Whether a governmental entity is accurately reporting the results of a public questionnaire or whether the survey itself is valid is a matter of legitimate public concern.
The questionnaire informed persons responding that his or her name was necessary to validate the results of the survey. By the same token, the public should be entitled to the same information to determine whether the public agency's reporting of the results of the study was accurate and valid.
The questionnaire requested the citizen's input relative to existing highway related concerns, regional growth and development, future improvement needs, environmental/socioeconomic issues, and information as to the responding person's relationship to U.S. 460, such as where he lived, worked, use of the highway, and whether property was owned adjacent to the highway. As noted above, this office has previously recognized that a person's name is personal, but is the least personal thing about him. This type of information does not touch intimate or personal features of a person's life that is normally associated with an unwarranted invasion of personal privacy, subject to nondisclosure under KRS 61.878(1)(a).
Accordingly, disclosure of the names, in our view, would not constitute an unwarranted invasion of personal privacy in light of the superior public interest to be served by disclosure of the information. Thus it is the decision of this office that the Cabinet improperly relied upon KRS 61.878(1)(a) in denying access to the study results with the names unmasked.
Moreover, although we reach this conclusion by applying the two part analysis set forth in Zink , we remind the Cabinet that KRS 61.880(2) mandates that the burden of proof in sustaining a public agency's denial of an open records request rests with the agency. An agency can properly rely on KRS 61.878(1)(a) in withholding a record only if it can establish that the public interest in release of that record is outweighed by the individual's privacy interest. Mere recitation of the exception does not meet this burden.
Since Mr. McKnight does not challenge the masking of any home addresses which may have been returned with the questionnaires, we do not reach that question here.
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.