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 Northern Kentucky University violated the Open Records Act in denying the Northern Kentucky University Department of Public Safety's request for personal information contained in the personnel file of a University employee who is the subject of an ongoing criminal investigation. Although we disagree with NKU's analysis of KRS 61.878(5), promoting agency exchange of otherwise exempt public records "when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function, " we do not find that its denial of the Department's request constitutes a violation of the Open Records Act inasmuch as KRS 61.878(5) is not a mandatory provision.
In a request dated May 30, 2001, Public Safety Officer Robert Yelton requested the full legal name, address, telephone number, social security number, and date of birth of a "current/former Northern Kentucky University employee" identified by name and university department. 1 Officer Yelton explained that "the information is needed to further a criminal investigation. " On behalf of NKU, Sara L. Sidebottom, Vice-President for Legal Affairs and General Counsel, denied Officer Yelton's request. Relying on KRS 61.878(1)(a), she maintained:
A person's social security number, date of birth, home address and home phone number have been determined by both the Attorney General and the Kentucky Court of Appeals to be information of a personal nature, which is exempt from disclosure under the Open Records Act. (See OAG 95-ORD-151, OAG 93-ORD-118, OAG 92-ORD-1238, and Zink v. Commonwealth, Dep't of Workers' Claims. ) Furthermore, Northern Kentucky University has a long-standing policy of not releasing such sensitive information without a written release from the subject named in the records.
Following an exchange of letters in which the Department unsuccessfully attempted to persuade NKU that the requested information was necessary to the performance of a legitimate government function, Director of Public Safety Jeffrey L. Butler initiated this appeal.
In a supplemental response directed to this office following commencement of the Department's appeal, Ms. Sidebottom elaborated on NKU's position. Ms. Sidebottom noted that in applying the balancing test formulated by the
Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992), the Court of Appeals and the Attorney General have concluded that release of personal information pertaining to both private citizens and public agency employees, including social security number, date of birth, home, address, and home telephone number, does not further an open records related public purpose, and that the privacy interest of these individuals outweighs the public interest in disclosure. In support, she cited
Zink v. Commonwealth, Department of Workers' Claims, Ky. App., 902 S.W.2d 825 (1994), and numerous open records decisions of this office, affirming public agency denial of access to this information. It was Ms. Sidebottom's position that the broad public interest in apprehending a suspected criminal cannot be said to advance the principal purpose of the Open Records Act, namely, to subject agency action to public scrutiny.
Responding to the Department's invocation of KRS 61.878(5), Ms. Sidebottom observed:
KRS 61.878(5) is not a broadening of agencies' access to otherwise private information. When one considers the plain language of the provision and legislative intent of the Open Records Act, it is clear that the character of KRS 61.878(5) is that of a shield which protects an agency's existing right to obtain information to which it has always possessed access to [sic]. It is merely a preserving provision which grants to government agencies no greater nor any less access to records than that granted to private individuals. In fact, the Attorney General's test for determining disclosure under this provision is no different from that analysis applied when a non-governmental agency is seeking disclosure of information of a personal nature. Governmental agencies do not enjoy a higher presumption in favor of disclosure, and have no greater rights of access under KRS 61.878(5) than anyone else.
Finally, if the University were to break from its tradition of not disclosing social security numbers, dates of birth, home addresses and phone numbers of its employees, it must do so for all open records requests, whether they be from another police agency or a commercial entity seeking to sell its goods. Under Kentucky law, we cannot limit our disclosure to one class of requesters, but must treat all equally, for if the record is disclosable for one purpose, it is disclosable for all purposes unless specifically prohibited by statute.
Respectfully, we disagree with NKU's analysis of KRS 61.878(5), and its interpretation of 96-ORD-177, the open records decision construing this provision.
In 96-ORD-177, the Attorney General was asked to review the City of Louisville's denial of a request submitted by the Kentucky Human Rights Commission for informal complaints filed against City of Louisville police officers, and the disposition of those complaints. We held that the City's reliance on KRS 61.878(1)(i) and (j) as a basis for denying the Commission access to these records was misplaced, and its reliance on KRS 61.878(1)(a) to authorize blanket nondisclosure of the identities of complainants and officers did not find support in existing authority. With reference to the narrow category of records for which a particularized showing of exemption could be made, we held that KRS 61.878(5) notwithstanding, the City could not be compelled to release these records. Fundamental to this holding was the recognition that KRS 61.878(5) is not a mandatory provision, requiring public agencies to exchange otherwise exempt information, but is instead a matter of agency discretion. Contrary to the interpretation of 96-ORD-177 advanced by NKU, the Attorney General did not hold that a public agency may exchange records with another public agency under KRS 61.878(5) only if those records are nonexempt. In our view, such a construction makes the provision an illogical redundancy.
At pages 6 and 7 of 96-ORD-177, the Attorney General examined KRS 61.878(5) in some depth. That statute provides:
In recent years, this office has characterized this provision as a mandatory stricture under the terms of which one public agency must exchange public records and share information with another public agency if the latter agency is performing a legitimate public function. [Footnote omitted.] While we continue to ascribe to the view that KRS 61.878(5) is aimed at promoting the exchange of information and records to eliminate duplication of effort and conserve resources, and thus should be strongly encouraged, we depart from the view that it is a mandatory provision. To the extent that any prior open records decisions are inconsistent with this position, they are modified accordingly.
In
Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109 (1981), the Kentucky Court of Appeals analyzed the language of KRS 61.878(5) in some depth. [Footnote omitted.] There, the Urban County Human Rights Commission brought an action to compel the Fayette County Board of Education to disclose the county school system's personnel files for the purpose of permitting investigation of an employee's sex discrimination claim. The court held that portions of the files had "no place in an employment or promotion sex discrimination case and no public interest would be served by complete disclosure. " Board of Education at 111. The court did not consider its views:
to be violative of KRS 61.878[(5)] because nothing contained therein entitles one governmental agency to demand from another information which does not serve a governmental need.
"In other words," the court concluded, "there is no unqualified right for one entity to examine . . ." the records of another in their entirety and without restrictions. Id. at 111.
Confirming that public agency exchange of otherwise exempt public records is a "laudable goal," and one that is to be strongly encouraged, the Attorney General nevertheless concluded that "each agency must retain a reasonable measure of discretion to decline the invitation to share its records." 96-ORD-177, p. 7.
As NKU correctly observes, the information at issue in this appeal "is generally accepted by society as details in which an individual has at least some expectation of privacy," Zink at 828. Both the courts and the office have determined that such information typically qualifies for exclusion from public inspection under KRS 61.878(1)(a) since disclosure would not meaningfully advance the public's "right to be informed as to what their government is doing." Id. at 829. Accordingly, access to the information may, in general, be denied. Nevertheless, we believe that NKU may properly share the information with its Department of Public Safety, under the provision of KRS 61.878(5), without waiving its right to invoke the exception as to all other requesters, and without violating the principal of uniformity in disclosure policies. The record is clear that the information is necessary to the performance of a legitimate government function, namely identification and investigation of a university employee suspected of criminal misconduct. Contrary to NKU's position, we believe that under these circumstances the Department does enjoy a higher presumption in favor of disclosure for the limited purpose of discharging this function, and with the clear understanding that the requested information will be treated circumspectly. Accordingly, we do not find that NKU's refusal to share the information constitutes a violation of the Open Records Act; however, the University may wish to reconsider its position in light of the analysis set forth above.
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 proceedings.
Jeffrey Butler415 Johns Hills RoadHighland Heights, KY 41099
Sara L. SidebottomVice President for Legal AffairsGeneral CounselNorthern Kentucky UniversityLucas Administrative Center 824Nunn DriveHighland Heights, KY 41099
Footnotes
Footnotes
1 We note that Officer Yelton's request for "information" was not a properly framed open records request. This office has consistently recognized that a request for information, as opposed to a request for specific documents, need not be honored. 99-ORD-71. Nor is an agency required to compile specific information to conform to the parameters of a specific request. 96-ORD-12. NKU apparently elected to treat Officer Yelton's request as a properly framed open records request, and denied the request on the basis of the privacy exception.