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 FIVCO Area Development District properly denied Big Sandy News editor Jerry Pennington's October 16, 1998, request for "copies of lists of Lawrence County residents receiving free taps to a current sewer project to serve the Point section." 1 For the reasons that follow, we find that FIVCO's response was procedurally deficient and, on the facts presented, substantively incorrect.
On October 22, 1998, Mary Kay McGinnis-Ruark, community development specialist for FIVCO, responded to Mr. Pennington's request, denying him access to "the names of those receiving free taps. " She explained:
We have been advised by our counsel that we cannot comply with your request for the information without a court order. The information you requested is basically a list of the low to moderate-income residents; extremely low income and very low-income residents. We fear that publication of such information without court authority would be in violation of the exemption from the [Open Records] Act as contained in KRS 61.870(1).
Dissatisfied with FIVCO's response, Mr. Pennington initiated this appeal. We find that Mr. Pennington's objections are well-taken.
We begin by noting a number of procedural irregularities in FIVCO'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.
In her October 22 response, Ms. McGinnis-Ruark failed to cite the specific exception authorizing nondisclosure of the list of Lawrence County residents receiving free taps to the Point section sewer project, and offered only the barest of explanations for why the records were withheld. 2 The statute to which she refers in support of FIVCO's denial of Mr. Pennington's request, KRS 61.870(1), contains the definition of the term "public agency" as it is used in KRS 61.872 to KRS 61.884. KRS 61.870(1) does not, however, provide an independent basis for a public agency's denial of an open records request. Although FIVCO supplemented its response in a letter to this office dated November 6, 1998, Ms. McGinnis-Ruark simply relied on the Area Development District's original denial as the basis for its position. 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 FIVCO's response was procedurally deficient.
Edmondson v. Alig., Ky.App., 926 S.W.2d 856, 858 (1996).
Moreover, we cannot affirm FIVCO's denial of Mr. Pennington's request. That denial was apparently premised on the argument that disclosure of a list of recipients of free sewer taps would violate the privacy interests of the recipients by indirectly revealing their level of incomes. On the facts presented, we are not persuaded that disclosure of such a list would constitute a clearly unwarranted invasion of personal privacy.
In 97-ORD-170, this office analyzed, in considerable depth, a public agency's invocation of the privacy exception, KRS 61.878(1)(a), to support nondisclosure of records relating to persons who qualify for a public benefit, in that case public housing. At pages 5 through 8, we observed.
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:
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:
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):
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":
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.
Based on this analysis, in 97-ORD-170 we concluded that the privacy interests of persons who qualify for public housing in inspection reports of the premises they occupy was outweighed by the public's right to know that the housing authorities which oversee public housing facilities were properly discharging their duties. We believe that an analysis of the competing interests in the appeal before us yields the same result.
In Zink , the Court of Appeals recognized that information about an individual's income "is commonly treated circumspectly." Zink at 829. Clearly then, the amount of an individual's income is "generally accepted by society as [a] detail[] in which [he] has at least some expectation of privacy. " Zink at 828. Here, however, Mr. Pennington does not seek access to the specific amounts of individuals' incomes, but to the names of persons who qualify for free sewer taps. While disclosure of the former would implicate a strongly substantiated privacy interest, disclosure of the latter is only minimally invasive (since it only indirectly reveals general income levels). We therefore find that the privacy interest of persons qualifying for free sewer taps in the nondisclosure of their names is not a significant one.
Conversely, the public's interest in disclosure of the names is substantial. The Zink court recognized 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." Zink at 828, 829. It is undisputed that the Lawrence County Fiscal Court is charged with the duty to authorize free sewer taps to private individuals based on certain income guidelines. Disclosure of the names of the individuals selected will further the public's right to know that this duty is being properly discharged. The resulting invasion of personal privacy, which in our view is not significant, is outweighed by the competing public interest in monitoring the Lawrence Fiscal Court's conduct in this matter.
This view finds support in a number of opinions of this office dealing with the conferral of public benefits on private individuals. For example, 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 the locations of, and materials purchased for, winterization projects performed by the agency. At page 4 of that opinion, we observed:
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, we were asked to determine if the Lexington-Fayette Urban County Housing Authority properly denied a request for inspection reports on Section 8 housing units on the basis of KRS 61.878(1)(a). The Attorney General noted:
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. . . .
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 . . ."); 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 public's interest in overseeing the proper administration of the free sewer tap program is paramount. Having failed to meet its burden of proof relative to its privacy claim, FIVCO Area Development District must disclose the names of persons receiving free sewer taps.
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.
Footnotes
Footnotes
1 Mr. Pennington also requested "a list of names of those who have paid the tap fees." This request was honored.
2 Mr. Pennington requested a list of the names of persons receiving free sewer taps. We assume such a list exists since FIVCO did not object to disclosure on the basis that a list does not exist and the Open Records does not require it to create one. See 96-ORD-251 and the opinions cited therein.