Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky Teachers' Retirement System's (KTRS) denial of Ruth Green's request for the "names and addresses of each individual active and retired member" of the retirement system violated the Open Records Act. For the reasons that follow, we conclude that it did not.
By letter dated July 9, 2002, Ms. Green, Executive Director, Kentucky Association of Professional Educators, made the following request:
Please honor this open records request for the names and addresses of each individual active and retired member of your retirement system. We understand that this information is available under the Kentucky Open Records Law.
Further, we have knowledge that you are currently providing this information to other associations in Kentucky.
We request to receive this information in an electronic format and that the members be identifiable as either active or retired. Also, we would appreciate it if you would advise us to the cost, if any, of producing this file prior to producing it.
We have enclosed information about our organization. If you have further questions please contact the office.
On August 13, 2002, having received no response to her request, Ms. Green reiterated her request.
By letter dated August 15, 2002, Robert B. Barnes, General Counsel, responded to the requests on behalf of KTRS. In his response, Mr. Barnes advised:
I have been asked to respond to your open records request dated August 13, 2002, and received by Kentucky Teachers' Retirement System ("KTRS") on August 14, 2002. First, in regard to the July 9, 2002 mailing that you referenced in your August 13th letter, KTRS did receive a card and information from the Kentucky Association of Professional Educators ("KAPE") that generally described the organization, but these informational materials did not appear to contain an open records request for KTRS member names and addresses. Otherwise, KTRS would have responded promptly.
As for the current open records request, KTRS must respond that KRS 161.585(1) provides that "[e]ach member's account shall be administered in a confidential manner and specific data regarding a member shall not be released for publication unless authorized by the member...". As such, pursuant to KRS 61.878(1)(l), KTRS member records, including name and address information, are exempted from inspection under the open records law as public records made confidential by enactment of the General Assembly. These records would also be exempted under KRS 61.878(1)(a) as records containing information of a personal nature.
In her letter of appeal, Ms. Green asks this office to review KTRS's denial of her request and again stated that it was her understanding the requested information was being provided to other associations and, if that was true, she also should be able to obtain the information.
For the reasons that follow, we conclude that the agency's denial of Ms. Green's request for the names and addresses of the active and retired members of the KTRS was proper under both KRS 61.878(1)(a) and KRS 161.585(1), in tandem with KRS 61.878(1)(l).
We address first the denial of the request under authority of KRS 61.878(1)(a). That statute authorizes the withholding from public inspection those records described as, "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 KRS 61.878(1)(a). 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.
After finding that information such as home address, telephone number, and social security number is "generally accepted by society as details in which an individual has at least some expectation of privacy, the Zink court focused on the second part of the two-part privacy analysis: whether an invasion of this privacy interest is warranted by a superior public interest in disclosure. The court observed:
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 principle purpose of the Open Records Act. This is the approach the United States Supreme Court has taken in a similar analysis of requests under the Freedom of Information Act (FOIA). See Dept. of Justice v. Reporters Comm. For Freedom of Press, 489 U.S. 749, 774-75, 109 S. Ct. 1468, 1482-83, 103 L. Ed. 2d 774, 796-97 (1989). As stated in Board of Examiners [of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992)], "[t]he public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus to an agency steadfastly to pursue the public good. " 826 S.W.2d at 328. At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
In National Association of Retired Federal Employees v. Horner, 879 F.2d 873 (D.C. Cir. 1989), the association (NARFE) made a Freedom Of Information Act (FOIA) request to the Office of Personnel Management seeking the names and addresses of retired or disabled federal employees. The D.C. Circuit held that the information was exempt from disclosure under FOIA Exemption 6, which applies to records "the disclosure of which would lead to a clearly unwarranted invasion of personal privacy. " 5 U.S.C. § 552(b)(6). In analyzing and reaching this conclusion, the court, at pgs. 876, 878-879, stated:
. . . disclosure of the information requested here would interfere with the subjects' reasonable expectations of undisturbed enjoyment in the solitude and seclusion of their own homes. The list at issue here reveals not only the names and addresses of hundreds of thousands of individuals; it also indicates that each is retired or disabled (or the survivor of such a person) and receives a monthly annuity check from the federal Government. Any business or fund-raising organization for which such individuals might be an attractive market could get from the Government, at nominal cost, a list of prime sales prospects to solicit. Armed with this information, interested businesses, charities, and individuals could, and undoubtedly would, subject the listed annuitants "to an unwanted barrage of mailings and personal solicitations. " Minnis, at 737 F.2d at 787. In light of the Supreme Court's affirmation, in a different context, that "[t]he ancient concept that 'a man's home is his castle' into which 'not even the king may enter' has lost nor of its vitality ...," such a fusillade cannot be deemed a de minimus assault on the privacy of those within.
?
. . . In this case, there is little reason to doubt that the barrage of solicitations predicted will in fact arrive - in the mail, over the telephone, and at the front door of the listed annuitants.
In virtually every case in which a privacy concern is implicated, someone must take steps after the initial disclosure in order to bring about the untoward effect. Disclosure does not, literally by itself, constitute a harm; it is the requester's (or another's) reaction to the disclosure that can sting. This is more obvious where disclosure of the information invades someone's privacy not because it is embarrassing but because it invites unwarranted intrusions.
?
Here, there is a substantial probability that the disclosure will lead to the threatened invasion: one need only assume that business people will not overlook an opportunity to get cheaply from the Government what otherwise would come dearly, a list of qualified prospects for all the special goods and services, and causes likely to appeal to financially secure retirees. It is clearer still that the invasion of the annuitants' privacy will be more than de minimus; it will be significant.
?
The lesson in this case, mutatis mutandis, is that unless the public would learn something directly about the workings of the Government by knowing the names and addresses of its annuitants, their disclosure is not affected with the public interest.
Although NARFE case is not controlling authority in this appeal, we find the D.C. Circuit's analysis compelling and adopt its reasoning here. As noted above, the courts and this office have held that a person's home address is information in which an individual has at least some expectation of privacy. Quoting liberally from the Sixth Circuit's decision in Heights Community Congress v. Veterans Administration, 732 F.2d 526, 529 (6th Cir. 1984), the Zink court opined:
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." [Citation omitted.] 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. . . .
See also, 95-ORD-151.
In the instant appeal, we find that the intrusions set forth in NARFE would be present and forced upon the KTRS members, if the agency were required to disclose the names and addresses of all its active and retired members. Accordingly, we conclude the KTRS members have a substantial privacy interest in the release of their names and addresses.
In assessing the public interest in disclosure, we must examine the nature of the requested records with its relationship to the principal purpose of the Open Records Act, i.e., the citizens' right to be informed as to what their government is doing. 97-ORD-176. We do not see how disclosure of the names and addresses of active and retired members of KTRS in any way furthers the purpose for which the Open Records Law was enacted. The public can learn little or nothing about the operations of the KTRS by knowing the names and addresses of its members. 1 Since disclosure of this information would do nothing to further the public's right to know how the KTRS conducts its business, we find that there is no public interest supporting disclosure.
We therefore conclude that the KTRS members' privacy interest in the nondisclosure of their names and addresses is superior to the nonexistent public interest in disclosure. The KTRS properly withheld this information pursuant to KRS 61.878(1)(a).
Moreover, in addition to KRS 61.878(1)(a), KRS 161.585, in tandem with KRS 61.878(1)(l), require the KTRS to maintain the confidentiality of the KTRS members' names and addresses.
KRS 161.585(1) provides:
Each member's account shall be administered in a confidential manner and specific data regarding a member shall not be released for publication unless authorized by the member; however the board of trustees may release member account information to the employer or to other state and federal agencies as it deems necessary.
KRS 61.878(1)(l) provides for the withholding of access to:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
The name and addresses of the KTRS members, in our view, constitute "specific data regarding a member" and release of such information would not be administering each member's account in a "confidential manner." KRS 161.585(1). This office has previously held that similar language in KRS 61.661(1) 2 exempts information about a Kentucky Employees Retirement System (KERS) member's accounts, absent a court order, from public inspection under the Open Records Act. OAG 76-479 and OAG 80-506. Accordingly we conclude the KTRS properly denied the request for the names and addresses of its members, under authority of KRS 161.585(1) and KRS 61.872(1)(l).
In her letter of appeal, Ms. Green indicates that it is her understanding that the names and addresses are being provided to other associations. We have no information relative to this and thus do not address that issue in this appeal. We do note, however, that the Attorney General has consistently recognized that under the Open Records Law, all persons have the same standing to inspect public records and that the purpose for which an individual requests those records is irrelevant. 92-ORD-1136; OAG 89-86; OAG 91-129. "If one person [in the absence of a court order] is allowed to inspect a record, all should be allowed to inspect. " OAG 89-86, at p. 5.
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 In NARFE, the court rejected the trade association's argument that there was a public interest in disclosure to inform the public where its money was going. "While we can see how the percentage of the federal budget devoted to annuities, the amount of the benefit an average annuitant receives, or other aggregate data might be of public interest, disclosure of those facts would not be entailed in (and could be accomplished without) releasing the records NARFE seeks here. The simple fact is that those records say nothing of the significance about 'what the Government is up to'" Id. at 879 (quoting Reporters Committee).
2 KRS 61.661(1) currently provides:
Each current, former, or retired member's account shall be administered in a confidential manner and specific data regarding a current, former, or retired member shall not be released for publication unless authorized by the member; however the system may release account information to the employer or to other state and federal agencies as it deems necessary to a subpoena or order issued by a court of law. The current, former, or retired member's account shall be exempt from the provisions of KRS 171.410 to 171.990. [State Archives and Records Act]