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 Kentucky Commission on Human Rights properly relied on KRS 61.878(1)(a) in denying Greg Munson's October 29, 1998, request to inspect the Commission's docket book. Based on this office's decision in 98-ORD-186, we find that the Commission's reliance on the cited exception was misplaced.
In a letter dated November 2, 1998, Beverly L. Watts, the Commission's Executive Director, denied Mr. Munson's request. Although she did not cite the specific exception upon which she relied, Ms. Watts maintained that "disclosure of the information requested would be an unwarranted invasion of privacy and would not serve the purpose of the Open Records Act." Alluding to the earlier open records appeal filed by Mr. Munson, which was pending on the date of his second request, Ms. Watts indicated that the Commission would "wait for a decision from the Attorney General before complying with any request for personal information. " On November 23, 1998, the Attorney General issued 98-ORD-186, holding that the Commission improperly relied on KRS 61.878(1)(a) to support its denial of Mr. Munson's request for "all complaints officially filed and assigned KCHR docket numbers" for a one month period.
Mr. Munson questions the propriety of the Commission's invocation of the privacy exception to protect the docket book from disclosure, noting that it:
contains no identifying information other than the assigned docket number, date filed, name of complainant and respondent, the county in which the respondent is located or the discrimination occurred, and the basis for the official, public complaint of discrimination. There is no address, phone number, racial classification or other identifying information in the Docket Book.
Mr. Munson's description of the docket book is not disputed.
It is the opinion of this office that 98-ORD-186 is controlling. Because the docket book itself does not constitute an initiating complaint, and because it does not contain items of information (such as the complainant's home address, telephone number, and date of birth) which might otherwise be properly withheld under KRS 61.878(1)(a), we conclude that the Commission is obligated to make full and immediate disclosure of the record.
In 98-ORD-186, the Attorney General recognized that the Commission had a conditional right to withhold complaints of discrimination which it received "under authority of KRS 61.878(1)(i) and (j), as construed in City of Louisville [v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982)], and OAGs 88-55 and 85-5, ? until such time as final action is taken." 98-ORD-186, p. 4. We also recognized that the Commission had an absolute right to withhold items of personal information appearing on the complaints which "'reveal[ed] little or nothing about [the Cabinet's] own conduct.'" 98-ORD-186, p. 5 quoting
Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 829 (1994). At pages 6 and 7 of that decision, we reasoned:
Among the Commission's statutory powers and duties is the duty "to receive and investigate complaints of discrimination." KRS 344.180(3). This duty lies at the very heart of its legislative charter. Inspection of the complaints which it receives, and the final action taken upon those complaints, will "reveal whether [the Commission is] indeed serving the public, and the policy of disclosure [will] provide[] impetus for [the Commission] steadfastly to pursue the public good." Board of Examiners [of Psychologists v. Courier-Journal and Louisville Times Co. Ky., 826 S.W.2d 324, 328] cited in Zink at 829.
?
Under Zink , the Commission may properly redact the complainant's home address and telephone number, as well as his date of birth (unless he has alleged age discrimination) since the public interest supporting disclosure is negligible. The Commission is, however, obligated to release the complainant's name [footnote omitted], the basis of discrimination, and the narrative of discriminatory treatment.
In a footnote appearing on pages 6 and 7, we recognized that in exceptional cases, the Commission could withhold the complainant's name if disclosure would constitute a clearly unwarranted invasion of personal privacy, but that in such cases "the Commission must articulate the basis for its denial in terms of the requirements of the statute, and 'provide particular and detailed information' supporting its partial denial."
Edmondson v. Alig., Ky.App., 926 S.W.2d 856, 859 (1996). "
As noted, the docket book is not a complaint, and its entries do not operate to initiate an investigation by the Commission. It therefore does not qualify for conditional nondisclosure under KRS 61.878(1)(i) or (j) based on its lack of finality. It is undisputed that the docket book does not contain the home addresses, telephone numbers, or dates of birth of the complainants. No portions of it therefore qualify for absolute nondisclosure under KRS 61.878)(1)(a) because the public's interest in those portions is outweighed by the complainants' privacy interests. Zink at 829 cited in 98-ORD-186, p. 6. Neither the complaints nor the docket book qualify for exclusion under KRS 344.250(6) since they do not constitute "information obtained by the Commission pursuant to its authority [to investigate complaints]." OAG 85-5; OAG 88-55; 98-ORD-186. Simply stated, the Commission does not advance any, and we know of no, legally supportable basis for denying Mr. Munson full and immediate access to its docket book, whatever his intended use of the information it contains. As the courts and this office have so often noted:
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.
Zink at 828; see also OAG 82-233, OAG 89-76 ("The exemption of KRS 61.878(1) may be invoked according to the nature of the record, but not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection" ).
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.