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 City of Monterey violated the Open Records Act in denying Gerald T. Kemper's April 18, 1999, request for copies of "all applications for building permits and . . . the building permits issued for the following years 1999, 1998, 1997, 1996, 1995, 1994, 1993." For the reasons that follow, we find that the city's blanket denial of Mr. Kemper's request constituted a violation of the Act.
Mayor Rebecca Albaugh denied Mr. Kemper's request in a letter dated April 20, 1999. Relying on KRS 61.878(1)(a), she maintained that the building permits contained information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. She explained that "every permit in [the city's] files which have all been approved by the state has personal information such as addresses and phone numbers (in some cases unpublished listings) ." Mayor Albaugh did not refer to, or offer any explanation for, the city's decision to withhold the building permit applications.
Shortly after he received Mayor Albaugh's written denial of his request, Mr. Kemper initiated this appeal. Although the City of Monterey was afforded the opportunity to supplement its original denial, in response to this office's notice of open records appeal issued on April 29, 1999, it did not elect to do so. In our view, the exemption cited by the city in support of its decision to withhold the requested records does not support blanket nondisclosure of those records.
KRS 61.878(1)(a) 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." Board of Examiners , above. 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 then the disputed records contain information of a personal nature, we must determine if the privacy interest in nondisclosure outweighs the public's interest in knowing how the City of Monterey discharges its duties under statute. 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.
Although we have not examined the actual records in dispute, we are advised that the permits contain "personal information such as addresses and phone numbers (in some cases unpublished listings) ." We are not advised what information appears on the building permit application, but our own research discloses that the owner's name, address, and phone number, along with that of the contractor, also appear on the application. Other information appears on the application, including the address at which the construction will take place, the nature of the construction, measurements, costs, a site plan, and if it is a new construction, the building plans. While much of this information, such as the address of the proposed construction, the nature of the construction, the measurements of the construction, and the building plans, 1 cannot properly be characterized as information of a personal nature, Kentucky's courts have recognized, on at least one occasion, that a citizen has a cognizable privacy interest in his home address and phone number. Thus, in Zink , above at 828, the Court of Appeals opined that "information such as marital status, number of dependents, wage rate, social security number, home address and telephone number are generally accepted by society as details in which an individual has at least some expectation of privacy. " (Emphasis added.) Elaborating on this position, the court observed:
The United States Court of Appeals for the Sixth Circuit Court when confronted with a FOIA request that would involve the release of home addresses of those with Veterans' Administration guaranteed loans stated that "'there are few things which pertain to an individual in which his privacy has traditionally been more respected than his own home.' (citation omitted). The importance of the right to privacy in one's address is evidenced by the acceptance within society of unlisted telephone numbers, by which subscribers may avoid publication of an address in the public directory, and postal boxes, which permit the receipt of mail without disclosing the location of one's residence. These current manifestations of the ancient maxim that'a man's home is his castle' (citation omitted) support the . . . important privacy interest in the addresses sought." Heights Community Congress v. Veterans Administration, 732 F.2d 526, 529 (6th Cir. 1984), cert. den., 469 U.S. 1034, 105 S. Ct. 506, 83 L. Ed. 2d 398. (1984). Similarly, many individuals choose to disseminate their home telephone numbers only on a selected basis. We, too, are hesitant to denigrate the sanctity of the home, that place in which an individual's privacy has long been steadfastly recognized by our laws and customs. One of our most time-honored rights is the right to be left alone,
Zink , above at 829.
Against this privacy interest we must weigh the public's interest in disclosure. As noted, that interest is premised on the public's right to know that its government is faithfully discharging its duty under the law. Pursuant to KRS 198B.060, local governments are charged with specific duties relative to enforcement of the Uniform State Building Code. Among these is the duty to issue and revoke "building permits, licenses, certificates, and similar documents which cover activities within their area of responsibility. . . ." KRS 198B.060(2) and (8). Inspection of the records which Mr. Kemper requests will clearly advance the public's interest in insuring that the city is properly executing this statutory function. Accordingly, we find that the City of Monterey violated the Open Records Act in issuing a blanket denial of Mr. Kemper's request. See, e.g., OAG 89-40; 97-ORD-42.
Given the weight attached to the individual's right of privacy in his home address and phone number, we believe that the public's interest in disclosure must yield to that right of privacy, and the name and home address may properly be redacted from the application and permit. If, however, the new construction site is the home owner's current residence, no interest will be served by nondisclosure of the address. Because the construction for which an application is obtained is, in such instances, visible to passing observers, the privacy interest of the homeowner is correspondingly reduced. Only the applicant's telephone number can, in these instances, be redacted.
For purposes of absolute clarity, we reiterate that pursuant to KRS 61.878(1)(a), only the applicant's home address and telephone number can be redacted, or masked, before a copy of the application and permit are released for public inspection. Our decision should in no way be construed as an affirmation of the city's current policy of blanket nondisclosure. KRS 61.878(4) mandates that "if any public record contains material which is not excepted under [one or more of the exceptions to the Open Records Act] , the public agency shall separate the excepted and make the nonexcepted materials available for examination." The City of Monterey may properly discharge its duty under the Act by furnishing Mr. Kemper with copies of the records identified in his request after the applicant's addresses and home telephone numbers are redacted, or masked, or, alternatively, by furnishing him with unredacted copies of the 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.
Footnotes
Footnotes
1 The city does not invoke, and we do not comment on the applicability of, other exceptions to the Open Records Act to authorize nondisclosure of, for example, building plans submitted along with the application for a building permit.