Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government violated the Open Records Act in responding to Lexington Herald-Leader reporter Sarah Webster's February 24, 1998, request for access to "any and all records, including tape recorded conversations, and correspondence pertaining to the following individuals: Bob Jones aka Bob Higgins [and] Gayl Jones." For the reasons that follow, we find that LFUCG erred in denying Ms. Webster's request on the basis that it was only the casual possessor of the records she sought to inspect, but properly refused to disclose the home addresses, telephone numbers, and other personal identifiers of the witnesses interviewed in the course of its investigation.
On behalf of the Lexington-Fayette Urban County Government, Glenda Humphrey-George, corporate counsel, responded to Ms. Webster's request on February 27, 1998. Ms. Humphrey-George explained that the Division of Police maintains a Lucille Jones investigative file and a Bob Jones investigative file, and that portions of those files would not be released. In support of her partial denial of Ms. Webster's request, she argued that LFUCG is not the official custodian of a number of documents contained in the files, including a report and press release from the Fayette County Coroner, correspondence between Mr. Jones and the Attorney General's Office, Mr. Jones and the University of Kentucky, and Mr. Jones and the Fayette County Attorney, and a complaint filed with the Kentucky Bar Association. It was Ms. Humphrey-George's position that LFUCG "is the 'casual possessor' of these records rather than the 'official custodian' because the records are still in the custody of the 'official custodian. '" Ms. Humphrey-George furnished Ms. Webster with the names and addresses of the agencies from which the records originated and could be obtained.
LFUCG also refused to disclose the telephone numbers, social security numbers, dates of birth, and home addresses of witnesses interviewed by the Division of Police following the incident involving Mr. Jones. Relying on KRS 61.878(1)(a), Ms. Humphrey-George explained that those portions of the witness statements were exempt because they contained information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. This appeal followed.
In a supplemental letter to this office, dated April 15, 1998, Ms. Humphrey-George elaborated on LFUCG's position. In support of her argument that LFUCG is not the official custodian of records furnished to it by other agencies or by Mr. Jones, but is only a "casual possessor, " she relied on OAG 80-462 and OAG 83-342 in which this office held that the official custodian of public records is:
the proper official to make decisions on policy concerning the release of records and to avail the agency of any exemptions which it feels it has and should exercise in regard to withholding records from public inspection.
Reaffirming LFUCG's position that it is not the official custodian of these records, Ms. Humphrey-George nevertheless indicated that for this and future open records requests, LFUCG "is willing to try to contact the public agency to determine whether the official custodian of that particular agency would release the documents if that particular agency had received the request." If the agency indicates that it would have released the documents, Ms. Humphrey-George noted, LFUCG will release the documents. If not, she continued, LFUCG will deny access on the basis of the exemptions which the agency would have invoked. We believe that this interpretation of the concept of "casual possession" is overly broad, and that LFUCG cannot invoke the concept to avoid its statutory duties.
In defense of its decision to withhold the home addresses, telephone numbers, and other personal identifiers of witnesses interviewed by the Division of Police after the incident, Ms. Humphrey-George emphasized that LFUCG released the names of the witnesses and their statements. Its decision to withhold the remaining information was based on its determination that the public's interest in disclosure was outweighed by the privacy interests of the witnesses in avoiding undue "harassment, public scrutiny and in some cases, danger." Citing Kentucky Board of Examiners of Psychologists v. The Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324 (1992) and Zink v. Commonwealth, Ky.App., 902 S.W.2d 825 (1994), Ms. Humphrey-George asserted that the public's right to know "is premised upon the public's right to expect its agencies to execute their statutory functions," Board of Examiners at 328, and "that purpose is not fostered . . . by disclosure of information about private citizens . . . that reveals little or nothing about an agency's own conduct." Zink at 829. We agree with this analysis.
We address first the propriety of LFUCG's argument that it is not the official custodian of records contained in its investigative files but obtained from other sources, and is instead a casual possessor. On this basis, LFUCG argues that it "is not required to address the inspection issue if the agency with official custody also has possession." OAG 83-342, p. 2. LFUCG subsequently modified this position by agreeing to contact the agencies from which it obtained the records to determine if that agency would permit disclosure, and to respond to the request accordingly. Neither of these positions finds clear support in the Open Records Act.
KRS 61.872(1) states that "all public records shall be open for inspection by any person, except as otherwise provided. . . ." More specifically, KRS 61.880(1) states that "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." The term "public record" is defined as "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Nowhere in these provisions do we find a requirement that the agency both prepare and possess the requested records. Nor do we find any language which relieves the agency of these clearly established duties if the records are in the custody of another agency from which they could "more appropriately" be obtained.
Rather, in construing these provisions, the Attorney General has recognized on several occasions that:
there is no specific exception to the Open Records Act that authorizes a public agency to withhold public records from an applicant because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency.
OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); 96-ORD-7 (holding that the Department of Corrections improperly referred inmate to the institutional records office for a copy of his resident record card when it too had custody of the card); and 98-ORD-17 (holding that Jefferson County Sheriff's denial of request for audits of his office would be improper if his office maintained a copy of the audits in addition to copies of the audits in the custody of the Revenue Cabinet). The weight of recent authority indicates that the concept of casual possession, which has no statutory basis, has been all but discarded.
On only one occasion in the immediate past has this office formally recognized the concept. In 94-ORD-155, the requester sought to inspect records generated by the United States Department for Health and Human Services Social Security Administration, which were in the custody of the Cabinet for Human Resource's Division of Disability Determinations. Access to these records was restricted by federal regulation and policy which provided that only the Director of the Social Security Administration's Office of Information was authorized to determine whether to release or withhold Social Security Administration records, including records in the regions. On this narrow basis, the Attorney General concluded that the Division of Disability Determination was the casual possessor of the disputed record, and therefore not required to address the inspection issue.
We do not abandon entirely the concept of casual possession, since rare cases may be presented in which it is applicable (such as in 94-ORD-155), but believe that it should be sparingly invoked. We find that LFUCG's reliance on the concept in the appeal before us is unsupportable. LFUCG does not assert that it does not have custody or control of the records. If this were the case, KRS 61.872(4) plainly states that it would discharge its statutory duty by so notifying the requester and furnishing him with the name and location of the official custodian of those records. The facts of this appeal are more closely akin to the facts presented in OAG 90-71, OAG 91-21, 96-ORD-7, and 98-ORD-17. These opinions firmly establish that an agency cannot avoid its statutory duty by relying on the concept of "casual possession," but must instead determine, within three working days of receipt of a request for records in its custody and control, whether to comply with the request, and notify the person making the request of its decision. KRS 61.880(1).
We see nothing wrong with LFUCG's alternative proposal that it consult with the agency from which it obtained the records to ascertain that agency's position on release of those records. In the three day period between receipt of the request and notification of its decision to the requester, LFUCG is free to take any reasonable steps, and make any reasonable inquiry, in furtherance of that decision. However, its election to consult with the agency from which it obtained the records cannot be used as an excuse to extend the deadline for its response to the open records request. As a public agency which has possession or retains copies of the records which Ms. Webster requested, LFUCG is obligated to discharge its duties under KRS 61.880(1) by releasing those records within three working days, or by denying her access to them on the basis of one or more of the exceptions found at KRS 61.878(1)(a) through (l) within three working days, notwithstanding the fact that those records are available, and could be obtained, from another agency.
Turning now to the issues of whether LFUCG properly relied on KRS 61.878(1)(a) in denying Ms. Webster access to portions of the witness statements taken after the incident involving Mr. Jones, we find that its actions were consistent with the Open Records Act. Contrary to the Herald-Leader's argument that the home addresses and telephone numbers of private citizens are not of a personal nature, Kentucky's courts have recognized that these items of information "are generally accepted by society as details in which an individual has at least some expectation of privacy. " Zink at 628. While telephone numbers and home addresses are often available through telephone directories and voter registration lists, the courts have nevertheless declared that "this information is no less private." Id. The question is not one of "total non-disclosure, but . . . an individual's interest in selective disclosure. " Id. The courts have therefore left little doubt that they consider the telephone numbers and home addresses of private citizens "information of a personal nature." Id. Although the courts have not had occasion to specifically address the question of whether a private citizen's date of birth is personal in nature, we have no reason to doubt that it would reach the same conclusion with respect to this item of information.
We share LFUCG's view that in weighing the competing interests to determine if an invasion of the witnesses' privacy is warranted, the privacy interests of the witnesses must, in this case, prevail. By releasing the names of the witnesses and their statements, LFUCG has "effectually promoted the public interest in regulation. . . ." Board of Examiners at 328. Because "there is a countervailing public interest in personal privacy, here strongly substantiated, we hold that further disclosure of information contained in the public record . . . would, as a matter of law, constitute a clearlyunwarranted invasion of personal privacy. " Id. at 328, 329. Simply stated:
Disclosure of the information [the Herald-Leader ] seeks would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny.
Zink at 829. LFUCG acted consistently with the Open Records Act in withholding those portions of the witness statements which revealed the home addresses, telephone numbers, dates of birth, and social security numbers of the witnesses.
In sum, we find that LFUCG improperly relied on the concept of casual possession in partially denying Ms. Webster's request. There is no provision of the Open Records Act that authorizes a public agency to withhold public records from a requester because the same records may more appropriately or more easily be obtained from another public agency. Nevertheless, LFUCG was authorized to withhold those portions of witness statements which contained information of a personal nature since disclosure of the information withheld "would do little to further the citizens' right to know. " Id.
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.