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 Mason County Board of Education properly relied on KRS 61.878(1)(a) in partially denying Lee Edwards's August 20, 1999, request for public records "pertaining to [former Mason County school teacher] Arthur Lund, including letters, teaching certificate, and school transcripts . . . ." For the reasons that follow, we conclude that the Board of Education's reliance on the cited exception was misplaced.
In a response dated August 23, 1999, Mason County Board of Education Director of Personnel, Kelly Middleton, denied Ms. Edwards's request, explaining:
The Mason County Board of Education is prohibited from releasing the contents of the personnel file of Mr. Lund pursuant to KRS 61.878(1)(a). Personnel files are considered confidential records and can be released only with the permission of the individual or by court order.
Mr. Middleton indicated that there are only three records in Mr. Lund's file: a college transcript, a teaching certificate, and a letter stating the date on which school began in 1937. Upon closer examination, the Board located a tuberculosis certificate. Shortly after receiving the Board's denial, Ms. Edwards initiated an open records appeal.
In her letter of appeal, Ms. Edwards indicates that her interest in these documents was historic, and that it is her intention to establish an exhibit "to honor the once teacher turned 'matinee idol of the popular song.'" The Board of Education responds:
Upon reviewing each item in Mr. Lunds's file, it is our opinion that the tuberculosis certificate and Mr. Lund's college transcript are exempt records under the invasion of privacy exemption of KRS 61.878(1)(a). Medical records and college grades are private matters and should not be disclosed to the public. Both records are unrelated to Mr. Lund's performance as a teacher. There is no public need-to-know concerning either of these matters since Mr. Lund is not currently teaching in the school system. The disclosure of these records would constitute an unwarranted invasion of privacy.
Although the Board of Education has furnished Ms. Edwards with copies of Mr. Lund's teaching certificate and opening day letter, it opposes disclosure of his transcript and tuberculosis certificate on privacy grounds. It is the opinion of this office that the Board's position is not supported by the weight of legal authority.
In a line of opinions dating back to 1981, the Attorney General has held that records pertaining to persons who are deceased are not protected by KRS 61.878(1)(a) because the decedent's right of privacy terminates at the time of his or her death. OAG 81-149; OAG 82-590; OAG 86-31; 99-ORD-11. On this issue, we have observed:
Requested records cannot be withheld from public inspection on the grounds of personal privacy where those records pertain to persons who are deceased as their right of privacy terminated at the time of their death. A deceased person has no personal privacy rights and the personal privacy rights of living persons do not extend to matters concerning deceased relatives.
In 77 C.J.S. Right of Privacy § 1(c), it is stated in part that on the theory that the right of privacy is purely personal, it has been held or recognized that it may be enforced only by the person whose right has been infringed. Furthermore, the individual right of privacy which any person has during his life dies with the person and any right of privacy which survives is a right pertaining to the living only. In 62 Am.Jur.2d Privacy § 43 the following appears: "It has generally been held that the right of privacy is purely personal, and that the right of action for its violation does not survive, but dies with the person whose privacy has been invaded."
OAG 86-31, p. 3, 4. As recently as January, 1999, the Attorney General confirmed this view, commenting:
Although in construing the Freedom of Information Act, 5 USC § 552, the federal courts have recognized a right of privacy for decedents and their families in tape recordings which reveal the decedents' thoughts and feelings at the moment of their deaths, this right has not been recognized in any case or opinion construing Kentucky's Open Records Act. New York Times Co. v. National Aeronautics and Space Administration, 920 F.2d 1002 (D.C. Cir. 1990).
99-ORD-11, p. 8. Accordingly, this office attaches little or no weight to the privacy interests of persons who are dead. Our research discloses that Arthur Lund, a popular baritone of the Big Band Era, died in 1990 at the age of 75. With his death, his right of privacy ended.
We share the Board of Education's view that disclosure of the remaining documents in Mr. Lund's file will not advance an open records related public purpose. Neither his college transcript nor his tuberculosis certificate offer meaningful insight into the way in which the Board discharges its duties. Nevertheless, because the Open Records 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), and the negligible public interest in disclosure outweighs Mr. Lund's nonexistent privacy interest, we find that the Board's reliance on KRS 61.878(1)(a) to partially deny Ms. Edwards's request was misplaced. In our view, the Board must provide her with copies of the remaining documents in Mr. Lund's personnel file.
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.