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 Daviess County Detention Center violated the Open Records Act in responding to requests submitted by Messenger-Inquirer reporter Mark Cooper, and assistant city editor Sam Adams, for information pertaining to current and former jail employees and records provided by the Detention Center to the Daviess County Jail Task Force. For the reasons that follow, we find that the Detention Center's response was only partially consistent with the Open Records Act. Although the Center properly withheld the home addresses and telephone numbers of its employees, it erred in indefinitely postponing, without explanation, access to records provided to the Jail Task Force.
On May 18, 1998, Mr. Cooper submitted a written request to Harold N. Taylor, Daviess County Jailer, for a list of the names, ages, addresses, and telephone numbers of all employees who worked at the Detention Center from January 1, 1995, to the present. Mr. Cooper also requested copies of "all records provided by the Center to the Jail Task Force appointed by Daviess County Judge-Executive Buzz Norris." On May 21, Daviess County Attorney Robert M. Kirtley partially denied Mr. Cooper's request for information pertaining to Detention Center employees, advising him as follows:
We are precluded by our Administrative Code and employment law from divulging more information than employee's name, classification and salary[.]
Mr. Kirtley also maintained that the employees' home addresses and telephone numbers "are exempt under the provisions of KRS 61.878(a) [sic] and/or (k) [sic]." In response to Mr. Cooper's request for records provided to the Jail Task Force, Mr. Kirtley indicated that he would "first have to get with the chairman to found out [sic] what exactly has been requested and furnished and if these records can be made available as nonexempt matters." He explained that the Center's staff has recently expended considerable time and effort in responding to U. S. Department of Justice inquiries, but that he hoped to be in touch with Mr. Cooper in the "next week with a timetable for the production of the requested materials." Mr. Cooper subsequently received a list of 57 names "with no other identifying information." He apparently received no subsequent communication from Mr. Kirtley relative to the records which the Detention Center furnished to the Task Force.
On June 20, 1998, assistant city editor Sam Adams requested the same information from Daviess County Judge/Executive W. M. "Buzz" Norris, Jr. Judge Norris advanced the same arguments in support of his denial of Mr. Adams's request as Mr. Kirtley had advanced in denying Mr. Cooper's earlier request. He explained that "KRS 61.878(a) and/or (k) precludes [sic] the Daviess County Fiscal Court from providing the home addresses and phone numbers of its employees." In addition, Judge Norris relied on this office's decision in 97-ORD-66 to support his position.
In their letter of appeal, Mr. Cooper and Mr. Adams challenge the Detention Center's position, arguing that disclosure of the names, addresses, and telephone numbers of public employees does not constitute a clearly unwarranted invasion of personal privacy. They observe:
The county maintains that the records requested are not connected to the public job performance of the jail employees. However allegations have been made to the newspaper that jail inmates provide farm labor on the jailer's private property. By extension, it is in the public interest to know whether such work is performed on the private property of jail employees. Therefore the home addresses of those jail employees are directly related to their public job performance.
In closing, Mr. Cooper and Mr. Adams note that the Detention Center has improperly postponed access to the records it furnished to the Jail Task Force. These records, which Mr. Cooper requested on May 18, have not been released to the Messenger-Inquirer to date, and no explanation has been given for the delay.
While we agree that the Detention Center's failure to afford the requesters timely access to these records, or, alternatively, to identify a statutory basis for denying access to the records, constitutes a violation of the Open Records Act, we do not share Mr. Adams's and Mr. Cooper's view that the Detention Center's refusal to disclose the home addresses and telephone numbers of the Center's employees is violative of the Act. It is our position that KRS 61.878(1)(a) authorizes nondisclosure of records containing this information since the public's interest in disclosure is outweighed by the employees' privacy interest.
We begin by noting a number of procedural irregularities in the Detention Center's responses to the Messenger-Inquirer's requests. KRS 61.880(1) contains 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.
Although the Detention Center responded in a timely fashion to the Messenger-Inquirer's requests, and cited the specific exceptions which it believed authorized the nondisclosure of the home addresses and telephone numbers of its employees, the Center did not explain how the exceptions applied to the records withheld. In Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996) the Kentucky Court of Appeals stated that in discharging its obligations under KRS 61.880(1) a public agency must "provide particular and detailed information in response to a request for documents." A "limited and perfunctory response," the court concluded, does not "even remotely comply with the requirements of the Act - much less . . . amount [] to substantial compliance." Id. We urge the Daviess County Detention Center to review the cited provision to ensure that future responses conform to the Open Records Act.
We nevertheless affirm the Detention Center's denial of the Messenger-Inquirer's request on the basis of KRS 61.878(1)(a). That statute excludes from the mandatory disclosure provisions of the Open Records Act "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " From this exclusion, "we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy. " Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). The public's right to know, the Kentucky Supreme Court observed in Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 327, 328 (1992), "is premised upon the public's right to expect its agencies properly to execute their statutory functions." "Inspection of records," the Court reasoned, "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. Echoing this view, in Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the Court of Appeals confirmed that "we . . . determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved." Continuing, the court observed:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] 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 principal 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.
Zink , above at 828, 829. If the disputed records contain information of a personal nature, we must determine if the privacy interest in nondisclosure outweighs the public's interest in what the Detention Center is doing and how it conducts its affairs. In so doing, we are guided by the knowledge that the Open Records Act "exhibits a general bias favoring disclosure, " Board of Examiners , above at 327, and "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed." KRS 61.871.
Kentucky's courts have recognized that home addresses and telephone numbers "are generally accepted by society as details in which an individual has at least some expectation of privacy. " Zink at 628. While home addresses and telephone numbers are often available through telephone directories and voter registration lists, the courts have nevertheless declared that "this information is no less private." Id. The issue is not one of "total non-disclosure, but . . . an individual's interest in selective disclosure. " Id.
Public employees do no forfeit their privacy interest in this personal information by virtue of their public employment. Although they are accountable to the public in the performance of their public duties, they, too, are endowed with the "time-honored right to be left alone" in their private lives. Zink at 829. Thus, the Attorney General has consistently recognized the privacy rights of public employees in purely personal details such as home address and telephone number, social security number, medical records, and martial status. OAG 79-275; OAG 87-37; OAG 90-60; OAG 91-48; OAG 91-202; 94-ORD-91; 97-ORD-66.
Against this privacy interest, we must weigh the competing public interest. As noted, the courts have determined that the only relevant public interest to be considered is the extent to which disclosure furthers the underlying purpose of the Open Records Act. That purpose is to permit public oversight of government operations. The Attorney General has traditionally taken the view that disclosure of the home addresses and telephone numbers of public employees sheds no light on an agency's performance of its public duties. The remote possibility that release of the home addresses and telephone numbers of Detention Center employees may ultimately reveal that the Center has improperly used inmate labor on private property is simply too attenuated to overcome the significant invasion of personal privacy which disclosure would entail. "Mere speculation about hypothetical public benefits cannot outweigh a demonstrably significant invasion of privacy. " United States Department of State v. Ray, 502 U.S. 164, 178-79 (1991). Although there is an unquestionable valid public interest in ferreting out official misconduct, if it in fact exists, release of the information the Messenger-Inquirer seeks would reveal nothing directly about the operations of the Daviess County Detention Center. We therefore affirm the Detention Center's denial of this portion of Mr. Cooper's and Mr. Adams's open records requests.
Nevertheless, we find that the Detention Center did not fully discharge its duties under the Open Records Act in responding to the Messenger-Inquirer's request for the records it provided to the Jail Task Force appointed by Judge Norris. KRS 61.880(1) requires that a public agency upon receipt of a request for records under the Open Records Act, respond in writing to the requesting party within three working days of receipt of the request, and indicate whether the request will be granted. In construing this provision the Attorney General has observed:
Nothing in the statute permits an agency to postpone or delay this statutory deadline while the agency "[begins] the process of identifying and compiling the [requested] records." The burden on the public agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to provide the requester with timely access to the requested records.
. . .
"Timely access" to public records has been defined as "any time less than three days from agency receipt of the request." OAG 84-300, at p. 3. In OAG 83-23, at page 4, we expressly held that an agency had not acted in accordance with KRS 61.870 to 61.884 "in its failure to allow inspection or make a proper response to [a] request to inspect records after three months from the date of [the] initial request." See also, OAG 91-200; OAG 92-35.
. . .
We believe that a determination of what is a "reasonable time" for inspection turns on the particular facts presented, i.e., the breadth of the request and the number of documents it encompasses, as well as the difficulty of accessing and retrieving those records. Public agencies must work, in a spirit of cooperation, with individuals who request to inspect their records to insure that those individuals are afforded timely access to the records they wish to inspect.
93-ORD-134, pp. 4-6. The Daviess County Detention Center erred in failing to afford Mr. Cooper timely access to the records it furnished to the Jail Task Force, or, alternatively, in failing to provide "a detailed explanation" of the cause of the delay and arranging for inspection at the earliest possible date. Although Mr. Kirtley stated that he would "get with the chairman" to determine which records were furnished and which could be released, and his office subsequently notified us that numerous records were disclosed to the Messenger-Inquirer , the Detention Center has not issued a formal response to Mr. Cooper's request in which it indicates what, if any records, are being withheld and the statutory authority for withholding them. The Daviess County Detention Center is directed to immediately respond to that portion of Mr. Cooper's request, and to release to him all records which were provided to the Jail Task Force.
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.