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 Jefferson County, Kentucky, Division of Environmental Health and Protection's partial denial of Robert Lee Kemper's open records request for copies of all complaints made to the Division against his property within the last five years, 1993 to the present.
Responding on behalf of the Division, Swannie Jett, Custodian of Records, provided copies of the requested complaints to Mr. Kemper, but, citing KRS 17.150, redacted from the complaints, the names of the persons making the complaints.
After receipt of Mr. Kemper's letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" and a copy of Mr. Kemper's letter to the agency. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, the Division provided this office with a response to the issues raised in the appeal. Responding again for the Division, Swannie Jett stated, in part:
It is the position of the Health Department that the information which has been requested is exempt from review pursuant to subsections (a), (g), and (h) of Section 1 of KRS 61.878. Our position is based upon the fact that the requested information is personal to the complainant, who has an expectation of privacy, and is information contained in preliminary notes and correspondence, none of which is intended to give notice of final action by the agency. The agency had a similar case decided in Sept. of 1991, Robert Preston Ford No. 1261 vs. Health Department. The Attorney General's decision will be enclosed. A copy of this will be forwarded to Robert Kemper.
Mr. Kemper appeals the Division's denial of his request for the names of the complainants. In a subsequent letter to this office, Mr. Kemper argues that the complainants have made false complaints against his property and, without their names, he is unable to take legal action against them to stop the harassment.
For the reasons that follow, we conclude that the Division's partial denial of Mr. Kemper's request was consistent with the Open Records Act and prior decisions of this office. We believe that OAG 91-160, and authorities cited therein, is controlling on the issues raised in this appeal. A copy of that decision is attached hereto and incorporated by reference.
In OAG 91-160, we held that the Louisville and Jefferson County Health Department properly withheld a complainant's identity under authority of KRS 61.878(1)(a). In that opinion, we stated:
We believe that this opinion, as well as subsequent opinions in which it is cited with approval, are dispositive of the instant appeal. Although Mr. Ford's purpose in seeking access to the requested record may be compelling, this Office has repeatedly held that the purpose for which an individual makes a request under the Open Records Act is not relevant. OAG 78-231; OAG
79-275; OAG 81-345; OAG 82-234; OAG 84-93; OAG 85-120; OAG 86-36; OAG 89-79; OAG 91-129. We acknowledge that Mr. Ford's concerns are valid, but believe that to compel disclosure of the complainant's name in this instance would establish a dangerous precedent, the likely result of which would be a decrease in the reporting of violations. In addition, we acknowledge that there are occasions when a complainant has a reduced expectation of privacy, as, for example, where the individual has testified in an open hearing. These individuals do not have a cognizable personal privacy interest in keeping their identities confidential. OAG 91-94.
However, as a general rule, we believe that the regulatory process would be seriously impaired if we established a blanket rule requiring the release of the identities of complainants where no violation is found.
KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
Accordingly, we conclude that the Division's action in providing Mr. Kemper with copies of the requested complaints with the names of the complainants redacted, under authority of KRS 61.878(1)(a), was proper and consistent with the Open Records Act and prior decisions of this office. KRS 61.878(4); OAG 91-160. Because the foregoing is dispositive of this appeal, we need not address other reasons set out as a basis for the partial denial of inspection of the requested records.
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.