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 Franklin County Department of Solid Waste properly relied on KRS 61.878(1)(a) in partially denying James Flynn's September 10, 1999, request to inspect "all complaints, documents about [his] property and business located at 350 Smoot Lane in Frankfort, Ky from Jan 1996 to present." For the reasons that follow, we find that unless the Department can make a particularized showing that individual complainants' identities were properly withheld, as for example where the complainant requested anonymity or expressed specific fear of retaliation by the individual against whom the complaint was lodged, its reliance on KRS 61.878(1)(a) to support its partial denial of Mr. Flynn's complaint was misplaced and it must release the complaints in their entirety.
Upon receipt of this office's notice of Mr. Flynn's open records appeal, Franklin County Attorney Jim Boyd responded on behalf of the office of the Franklin County Judge/Executive and the Department of Solid Waste. Mr. Boyd agreed to furnish Mr. Flynn with five documents relating to the Smoot Lane property, but indicated that certain information had been redacted. He explained:
The names and telephone numbers, if available, have been withheld pursuant to KRS 61.878(1)(a). This personal information is withheld to prevent unwarranted invasion of the complainant's personal privacy and to possibly prevent retribution and to prevent inhibiting complainants from reporting violations pursuant to KRS 61.878(2)(a).
Mr. Boyd did not indicate whether the particular complainants whose names and telephone numbers were withheld had requested that their identities not be disclosed, or expressed fear of retaliation, or if the decision to withhold the identifying information was simply a matter of Department policy. Nor did he indicate that the records disclosed represented the only existing records in the Department's custody that are responsive to Mr. Flynn's request. It is the opinion of this office that unless the Department can substantiate that the privacy interests of these complainants is superior to the public's interest in full disclosure, it must release their names and telephone numbers, and that it is obligated to affirmatively advise Mr. Flynn whether any other responsive documents remain in its files, and if so, on what basis those records are being withheld.
This office has long recognized that the identity of a complainant can be withheld under KRS 61.878(1)(a) where the complainant's privacy interest outweighs the public's interest in disclosure. 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 [.]
In OAG 84-315, we analyzed this exemption as it relates to a complainant's identity, commenting:
Although in City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (1982) and Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (1983), the Court of Appeals stated that complaints spawning an investigation are open once final action is taken, neither opinion discussed the release of the complainant's name. This question apparently was not considered by the Court.
The standard applied to the KRS 61.878(1)(a) privacy exemption is a balancing of interests. Specifically, the balance is between the protection of an individual's private affairs from unnecessary public scrutiny against the preservation of the public's right to governmental information. In this case, the nature of the withheld information (the complainant's name) obviously identifies the complainant and disclosure could possibly harm the complainant through harassment. . . .
It is therefore our opinion that disclosure of the complainant's name would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to governmental information. Release of the complainant' name would effectively chill any reporting of violations to the [public agency] . . . . Release of the complaint with the complainant's name deleted would effectively protect the complainant while allowing the party against whom the complaint is made access to information concerning the alleged violation which resulted in agency action. Pursuant to KRS 61.878(4), it is therefore our opinion that the citizen's complaint should be released (since final action has taken place) but the name of the complainant should be deleted pursuant to KRS 61.878(1)(a).
OAG 84-315, p. 4, 5. See also, OAG 85-126; OAG 85-136; OAG 86-60; OAG 89-52; OAG 90-12.
Nevertheless, since the Kentucky Supreme Court issued its decision in
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), this office has taken the position that a public agency cannot adopt a policy of blanket nondisclosure relative to the identity of a complainant, or any other piece of information appearing on a public record. In Board of Examiners , the Court declared that the Open Records Act, and in particular KRS 61.878(1)(a), "contemplates a case-specific approach." Id. at 327. The court recognized that the "question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. "The circumstances of a particular case," the Court concluded, "will affect the balance." Id. Based on this decision, the Attorney General has observed:
[A] generic determination that certain categories of information are excluded from the mandatory disclosure provisions of the Open Records Law under either of these exceptions, or any other exception, does not satisfy the requirements of that law. In reaching this decision, we are guided by several pertinent sections of the law, bearing in mind that the "basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest." KRS 61.871. First of all, 61.880(2) mandates that the burden of proof in sustaining a public agency's denial of an open records request rests with the agency. Second, an agency can properly rely on KRS 61.878(1)(a) in withholding a record only if it can establish that the public's interest in release of that record is outweighed by the individual's privacy interest. Finally, KRS 61.878(4) makes explicit the requirement of particularized justification by providing, "If any public record contains material which is not excepted under [KRS 61.878], the public agency shall separate the excepted and make the nonexcepted material available for examination."
94-ORD-133, p. 8. Thus, exclusion of a particular entry on a public record must be "articulated in terms of the requirement of the statute." OAG 89-20, p. 3.
In the absence of a particularized showing that an individual complainant's identity was properly withheld, the Department cannot withhold this information. This would include a specific request for anonymity or an expression of fear of retaliation. If the complainants made such a request or expressed such fears, the Department may withhold their names by providing Mr. Flynn with particularized justification for the partial denial of his request. See, 94-ORD-133 and 96-ORD-177; compare 96-ORD-164 and 99-ORD-39.
In closing, we note that nowhere in his response does Mr. Boyd indicate that all responsive records in the custody of the Department of Solid Waste Management have been released to Mr. Flynn. This office has consistently recognized that a public agency's response is insufficient under the Open Records Act if it fails to advise the requesting party whether the documents requested exist. OAG 86-38; OAG 90-26; OAG 90-69; OAG 91-101. In OAG 86-38, at page 3 we explained.
If the documents exist and inspection is denied, [the agency] should list each document which the [agency] will not permit the requesting party to inspect and state how the exception to public inspection relied upon applies to the particular document withheld from inspection.
Echoing this view, in OAG 90-26, at page 4, we categorically stated, "If a record of which inspection is sought does not exist, the agency should specifically so indicate."
Although Mr. Boyd's response does not indicate that any other records were withheld, or the statutory basis upon which the Department relied in denying Mr. Flynn access to them, neither does he state that Mr. Flynn has received all responsive records. Given this ambiguity, we believe it is incumbent on Mr. Boyd to advise Mr. Flynn whether all documents which are responsive to his request have been released to him, and if not, to identify the records withheld and the statutory basis for the decision to withhold them.
Finally, we note that Mr. Flynn expresses concern over what he characterizes as ongoing harassment by Franklin County officials. We remind him of the Attorney General's limited role in adjudicating an open records dispute. KRS 61.880(2)(a) directs the Attorney General to review the request and denial and issue a written decision stating whether the agency violated the Act. It does not empower the Attorney General to mediate disputes between private citizens and public officials which are beyond the scope of the Act. We therefore cannot resolve Mr. Flynn's problems relative to the Smoot Lane property.
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.