Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Labor Cabinet's denial of the open records request of Charles B. Wells for "the list which shows the eligible voters and the record of those eligible voters who cast votes within each of the units whose votes have been counted" violated the Open Records Act.
By letter dated December 19, 2001, Mr. Wells submitted the following request to the Cabinet:
In accordance with the Governor's Executive Order setting up the advisory labor counsel for State employees, your Cabinet was charged with collecting, verifying and counting the ballots. I am advised that the Personnel Cabinet provided your Cabinet with the list of eligible voters within each of the "units" which was used by your people to verify eligibility to cast a vote.
Pursuant to the Kentucky Open Record Act, this letter is to serve as a request that you provide me with a copy of the list which shows the eligible voters and the record of those eligible voters who cast votes within each of the units whose votes have been counted. I am not interested in any of the personal and private information on the list which may have been provided to you by the Personnel Cabinet. I want only each employee's full name as it appears on the list(s). Your office is free to redact any information which may reflect the employee's sex, date of birth, gender, Social Security number, marital status, home address or any other information which may be on the list which would be of a purely personal nature. Again all I require is the listing of the full names of the eligible voters and the record made by your Cabinet that a vote was or was not cast by each eligible employee. As there have been three (3) units for which ballots have been cast, please provide separate lists for each of the three units.
By letter dated December 21, 2001, Kembra Sexton Taylor, General Counsel, responding on behalf of the Cabinet, denied Mr. Wells' request, advising him, in relevant part:
The Labor Cabinet has conducted elections for the Governor's Employee Advisory Council by secret, mail ballots in four categories; Health Services Employees (E); Corrections, Parole and Other Law Enforcement Employees (G); Labor and Trades Employees (C); and Employment and Social Services Employees (D). In addition, in the Labor and Trades Employees Category (C), the agency conducted a run-off election. Therefore, Labor Cabinet personnel have counted secret, mail ballots on five, separate occasions.
As your letter notes, the Labor Cabinet obtained lists of employees eligible to vote in each of the categories from the Personnel Cabinet, the official custodian of records for state employees. The Personnel Cabinet is also the agency charged under Executive Order 2001-623 with the responsibility of determining whether each employee is eligible to vote and for assigning each eligible employee to a particular category. Each list contains the names of employees in the particular category, along with their position titles and numbers. The Labor Cabinet used the lists obtained from the Personnel Cabinet only to verify that each employee who returned a ballot was eligible to vote at the time the ballots were counted. Labor Cabinet staff made a mark beside the name of each employee on the list who submitted a ballot. Ballots received from employees not on the list were challenged, segregated, and not counted.
The Labor Cabinet did not prepare the lists of eligible employees you seek; you may obtain copies of the lists from the Personnel Cabinet. Furthermore, the lists prepared by the Personnel Cabinet that the Labor Cabinet used in counting ballots have marks by the names of employees who voted. State employees have exercised a private right to vote, or not to vote, for council representation. A state employee's privacy interest in that vote clearly outweighs the public's interest in the record of that vote. Therefore, your request is denied, because the lists are "records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a).
In his letter of appeal, Mr. Wells argues "that although, a person's vote is private, the act of voting, in itself, is not private and therefore should not be exempt from an open records request.
After receipt of Notification of the appeal and a copy of Mr. Wells' letter of appeal, Ms. Taylor provided this office with a response to the issues raised in the appeal. In her response, Ms. Taylor explained the election process as follows:
In order to justify an election, an employee organization must submit a Request for Recognition to the Secretary of Labor alleging that at least 30 per cent of the employees in a particular category have expressed an interest in representation. Thereafter, the Secretary will determine representation by secret ballot. EO 2001-623, Paragraph (8). Employees show their interest by signing authorization cards. "Method," Section III, A, 3. When the Secretary receives a Request, his staff examines the cards and verifies that those who signed the cards are eligible employees as shown on a list obtained from the Personnel Cabinet, the official custodian of records for state employees. If the Request for Recognition is in order, and thirty percent of employees in a particular category have expressed an interest in representation, the Secretary calls for an election. "Method," Section IV. Thereafter, other employee organizations may intervene, provided they meet the same requirements as the organization that filed the original request. "Method," Section IV, C.
Each of the elections held so far followed the established procedure. The Labor Cabinet's Office of Labor Management Relations and Mediation mailed ballots to the employees at their homes. When each employee decided to vote, or not to vote, in an election, he or she was in the privacy of his or her home. The employee was not executing an official act subject to public scrutiny; indeed, he or she was actually exercising a private right to vote, or not vote, for or against representation on the Advisory Council. In the instructions, employees were assured that their ballots would be secret. Strict controls were in place each time to insure secrecy. The ballots were locked in the post office until the date and the time scheduled for counting. Each ballot was in a secret ballot envelope, which the employee sealed and placed in an outer envelope pre-printed with the election's post office box number. The outer envelope also contained the employee's name and home address pre-printed as a return. Clearly, when casting their votes, employees had an expectation of privacy, even as to whether they voted at all.
Just prior to tallying the ballots, the Labor Cabinet obtained another list from the Personnel Cabinet of the employees in the affected category to determine that they were still eligible to vote. "Method," Paragraph I. Any interested person is free to request from the Personnel Cabinet copies of the same lists the Labor Cabinet used to verify eligibility in the four elections. Labor Cabinet staff made a mark beside the name of each employee on the list who submitted a ballot to ensure that duplicate ballots were not counted. Ballots received from employees not on the list were challenged, segregated, and not counted. As soon as an employee's eligibility was verified, a staff person opened the outer envelope and removed the secret ballot envelope. All the secret ballot envelopes were then placed in a box and opened as a group. After the elections were complete, all the ballots, along with the list of eligible employees containing the notations, were placed in boxes, sealed, and signed by party representatives. The documents are housed in the Labor Cabinet's Office of Labor Management Relations and Mediation.
We are asked to determine whether the Cabinet's denial of Mr. Wells' request violated the Open Records Act. For the reasons that follow, we conclude that the denial of the request for a copy of "the list which shows the eligible voters and the record of those eligible voters who cast votes within each of the units whose votes have been counted" was a violation of the Act.
KRS 61.878(1)(a) excludes from public inspection:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
The courts have developed a two-part analysis for determining the propriety of an agency's invocation of this exception. In
Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825, 828 (1995), the Court of Appeals adopted the test first set forth by the
Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324, (1992):
[O]ur analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination entails a "comparative weighing of antagonistic interests" in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. Id. at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
The Zink court noted that in weighing the public interest in disclosure against the privacy interests involved, "the only relevant public interest to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. " Zink at 828. "The purpose of disclosure, " the court continued, "focuses on the citizens' right to be informed as to what their government is doing." Id. Disclosure of records that do not subject agency action to public scrutiny may not be required where there is a competing privacy interest.
Recognizing the existence of these competing interests, we have held that it is incumbent on the agency advocating nondisclosure of records relating to an individual to satisfy its burden of proof that the privacy interests of that individual are superior to the public's interest in disclosure. 00-ORD-162.
In the instant appeal, the Cabinet argues that the release of the requested list of eligible employees with the marks beside the names of those who voted would be an unwarranted invasion of the personal privacy of the employees as to whether or not they voted for Advisory Council representation. The Cabinet asserts that the "right to maintain the secrecy of one's vote, or whether one voted at all, is sacred in this society."
Weighing the public's right to be informed as to what their government is doing, the Cabinet argues that release of the list showing whether eligible employees voted in the election would not reveal whether the state employee was doing his or her job or provide the public information as to whether the Cabinet was fulfilling its statutory obligations. We disagree.
Applying the two-part test, we find that an employee might have at least some expectation of privacy in the disclosure of whether he or she voted for Advisory Council representation. Having made this finding, we proceed to a determination whether disclosure of this information constitutes a clearly unwarranted invasion of personal privacy. This determination turns on whether the privacy interests implicated are superior to the public interest in disclosure. 96-ORD-123.
As noted above, the public's right to know under the Open Records Act is premised upon its right to expect its agencies properly to execute their statutory functions.
Section (8) of the Governor's Executive Order 2001-623, regarding Advisory Council representation, provides, in pertinent part:
Subsequent to July 31, 2001, if any employee organization presents evidence of a showing of interest to the Secretary of the Labor Cabinet that 30% of the classified employees in any of the nine (9) employee categories established in section (7) of this Order desire that organization to be their representative, then the Secretary of the Labor Cabinet shall determine by secret ballot if that employee organization is the preferred choice of a majority of the classified employees voting in that employee category. . . . (Emphasis added)
We agree with the Cabinet that each employee has an absolute right to privacy as to how he or she voted, the executive order states the election is to be determined by "secret ballot. " The Cabinet in its supplemental response explained the strict controls to insure the secrecy of an eligible employee's vote. 1 However, although the employee may have some expectation of privacy as to whether on not he or she voted, it is not absolute. Whether or not one "voted" is not the same as to "how" one voted.
We believe that disclosure of a copy of the list that shows the eligible voters and the record of those eligible voters who cast votes within each of the units whose votes have been counted would allow the employees and the public to validate the election process and to determine that the chosen representative was properly elected by a majority of the eligible employees voting. We conclude that this public interest outweighs the employee's privacy interest in whether or not he or she voted in the election. Accordingly, we conclude that Cabinet improperly denied Mr. Wells' request and should make the record available to him.
It is not clear whether the Cabinet denied the request for the list of eligible voters prepared by the Personnel Cabinet or directed Mr. Wells that he must get the list from the Personnel Cabinet, since it prepared the list and is the official custodian of the record. This Office has held that if an agency has custody and control of public records it cannot withhold those records simply because they might more appropriately or more easily be obtained from another agency. OAG 90-71. In 98-ORD-100, we stated:
KRS 61.872(1) states that "[a]ll public records shall be open for inspection by any person, except as otherwise provided. . . ." More specifically, KRS 61.880(1) states that "[e]ach public agency upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." The term "public record" is defined as "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency." KRS 61.870(2). Nowhere in these provisions do we find a requirement that the agency both prepare and possess the requested records. Nor do we find any language which relieves the agency of these clearly established duties if the records are in the custody of another agency from which they could "more appropriately" be obtained.
Accordingly, if it has not already been done so, a copy of the list of eligible voters should be made available to Mr. Wells.
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 Secretary of Labor established procedures for carrying out his responsibilities under the Executive Order. In the "Method of Determining Initial Representation on the Governor's Employee Advisory Council," Section IV, H. provides that all elections shall be conducted under the following conditions:
1. Secrecy of the ballots shall be guaranteed.
2. A choice of "No Representation" shall be included on the ballot.
3. The cost of printing and mailing ballots to employees in any category shall be borne equally by the employee organizations whose names appear on the ballot.
4. The Secretary shall mail a packet containing a ballot; a ballot envelope; a pre-addressed, stamped, return envelope; and instructions to each eligible voter.
5. The instructions shall advise the voter to mark the ballot without identifying himself or herself; place the ballot in the ballot envelope; seal the ballot envelope and place it in the return envelope; seal the return envelope; place the preprinted name code across the seal; and mail the envelope to the Secretary. The instructions shall also advise the voter of the date by which ballots must be received in order to be counted.