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 Magoffin County Clerk properly relied on KRS 61.878(1)(a) in denying Gordon B. Long's request to inspect "the Voter Assistance Forms for the 2002 May Primary and the 2002 General Elections. " For the reasons that follow, and upon the authorities cited, we find that, with the exception of the social security numbers appearing on those forms, the county clerk's reliance on KRS 61.878(1)(a) as the statutory basis for denying Mr. Long's request was misplaced. Unless the clerk can locate and assert as a basis for denying Mr. Long's request a separate federal or state enactment, within the meaning of KRS 61.878(1)(k) or (l), 1 prohibiting disclosure of records requiring certification of a disability or an inability to read English, he must release the voter assistance forms after redacting the social security numbers appearing thereon.
In his undated response to Mr. Long's request, Magoffin County Clerk Haden B. Arnett advised that the requested records "contain[] personal information on individual citizens of Magoffin County and disclosure of this information would 'constitute a clean [sic] invasion' of the personal privacy of those citizens." Relying on KRS 61.878(1)(a), Mr. Arnett maintained that "[t]he voters of Magoffin [County] who need assistance at the polls do and should expect their personal information to be kept personal," and that records containing that information "are not discoverable under the open record statutes." With the single exception noted above, and explored in greater depth below, we respectfully disagree.
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. " From this exclusion, "we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy. "
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). The public's right to know, the Kentucky Supreme Court observed in
Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 327, 328 (1992), "is premised upon the public's right to expect its agencies properly to execute their statutory functions." "Inspection of records," the Court reasoned, "may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." Board of Examiners, above. Echoing this view, in
Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the Court of Appeals confirmed that "we . . . determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved." Continuing, the Court observed:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] 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 principal purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink, above at 828, 829. If the disputed records contain information of a personal nature, we must determine if the privacy interest in nondisclosure outweighs the public's interest in monitoring the conduct of elections. In so doing, we are guided by the knowledge that the Open Records Act "exhibits a general bias favoring disclosure, " Board of Examiners, above at 327, and "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed." KRS 61.871.
The Attorney General has been presented with few open records appeals in which the question on appeal concerned access to voter registration and related records. No doubt this is because the statutes relating to access are unambiguous. For example, KRS 116.095 places an affirmative duty on county clerks to "permit any citizen, at all reasonable hours, to inspect or make copies of any registration record, without any fee," and to furnish any person with a copy of the registration records for a duplicating fee not to exceed fifty cents per page. In addition, KRS 117.025(3)(h) requires the State Board of Elections to "[f]urnish at a reasonable price any and all precinct lists to duly qualified candidates, political party committees or officials thereof, or any committee that advocates or opposes an amendment or public question . . . [and] to other persons at the board's discretion." By virtue of these provisions, any member of the public may inspect voter registration records containing the voter's name, date of birth, and address (but omitting social security number) , and the named individuals or groups, and "other persons at the board's discretion" may receive precinct lists identifying voters by name, date of birth, address, political party, and district (but containing only a bar-coded social security number that cannot be deciphered by the public).
In 96-ORD-203, we questioned the county clerk's disposition of a request for paper absentee ballots from the 1993 primary election and directed her to "ascertain if . . . [they] exist and, if so, how they are retained and filed, and then communicate that information in writing to the requesting party." On an unrelated subject, in 96-ORD-43, we affirmed the reasonableness of the price imposed for copies of precinct lists that was imposed by the State Board of Elections under the guidelines established in KRS 117.025(3)(h). On another unrelated subject, in 95-ORD-43 we declared that the county clerk "is charged with the duty of recording and keeping permanent records of, inter alia, legal instruments [and] voter registration, " and that although portions of those records might be withheld on the basis of the exceptions codified at KRS 61.878(1)(a) through (l), it was otherwise incumbent on the clerk to make the nonexcepted portions available for inspection regardless of whether the records were maintained in electronic or hard copy format. Several years before these decisions were issued, this office opined that "absentee ballots in the custody of the circuit clerk as a result of an election contest suit were open to public inspection." OAG 83-476, citing OAG 77-727. Our research reveals no prior decision of this office addressing the issue of access to voter assistance forms, and no provision of the Kentucky Revised Statutes by which they are made confidential.
We have examined a voter assistance form and find that it contains the following information:
! voter's name, residential address, social security number, and precinct name. This portion of the form contains a check-off for voters certified or not certified as requiring assistance on a permanent basis;
! an oath for a voter not certified as requiring assistance on a permanent basis, and directing the voter to swear (or affirm) that he or she is a qualified voter in the stated precinct, that the reason he or she requires assistance in voting is either blindness, physical disability, or an inability to read English (indicated by checking the appropriate box), and to affix his or her signature or mark and the signatures of witnesses;
! an oath for the person or persons assisting the voter (with signature lines);
! a section to be completed by the precinct election officer indicating the date when the parties swore (or affirmed) the oaths and the officer's signature; and
! an application for permanent assistance due to blindness or physical disability and indicating same by check-off in the appropriate box.
Clearly, some of the information appearing on the voter assistance form qualifies as information of a personal nature. See, for example, Zink v. Commonwealth of Kentucky, above at 828 (holding that "information such as . . . social security number [and] home address . . . are generally accepted by society as details in which an individual has at least some expectation of privacy. "). In addition, information pertaining to medical conditions, including disabilities, is generally treated circumspectly. See, for example, 03-ORD-023 and authorities cited therein. Having so found, "we proceed to determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interest involved." Id.
In Zink, above, the Court of Appeals recognized that home addresses "are often publicly available through sources such as telephone directories and voter registration lists," but that the information was "no less private simply because [it was] available some place." The court recognized that in conducting the privacy analysis under the Open Records Act, "[w]e deal . . . not in total nondisclosure, but with an individual's interest in selective disclosure. " Id. There, the court concluded that the public interest in disclosure of personal information appearing on a workers compensation form that "would do little to further the citizens' right to know what their government is doing," id. at 829, was substantially outweighed by the privacy interests of workers compensation claimants in their home addresses, and affirmed the agency's denial of the request.
In the appeal before us, we find that the balancing of interest yields the opposite result. Given the rule of openness statutorily mandated by the General Assembly at KRS 116.095 and KRS 117.025(3)(h), we believe that the voter's privacy interest in selective nondisclosure of his or her home address and the general nature of his or her condition necessitating assistance is outweighed by the public interest in insuring that the State Board of Elections, the county board of elections, the county clerk, and the precinct election officers are properly discharging their statutorily assigned duties and thereby preventing voter fraud. 2
Published reports have repeatedly noted that voter assistance forms have been used as a fraudulent means to influence elections. As noted by the Lexington Herald Leader in 1989, "The forms [voter assistance forms] are filled out by voters who declare they cannot operate a voting machine because they are illiterate or physically impaired. Historically, the forms have been misused--allowing vote-buyers to go into booths with voters. " "New Law Credited for Honest Kentucky Election, " Lexington Herald-Leader, November 14, 1988. Disclosure of these forms serves the public interest by permitting the public to learn whether one individual has "assisted" a large number of voters in an election. For example, in one case in Wayne County, an individual was found guilty of vote buying, and he had "assisted" 113 people - escorting each one into the voting booth. See "Monticello Official's Son Pleads Guilty to Vote Buying," Lexington Herald-Leader, September 6, 2000. Additionally, the public's interest in the disclosure of this information is weighty indeed considering Kentucky's long history of voter fraud and corruption in and around its polling places. See
Burchell v. Hubbard, 218 Ky. 344, 291 S.W. 751 (1926);
Prewitt v. Caudill, 250 Ky. 698, 63 S.W.2d 954 (1933);
Murrey v. Kirkman, 231 Ky. 191, 21 S.W.2d 240 (1929);
Butler v. Roberson, 158 Ky. 101, 164 S.W.340 (1914). This is particularly true in light of the fact that a large percentage of allegations concerning voter irregularities arise in the context of fraudulent voter assistance applications and certifications.
In reaching this determination, we bear in mind that the information contained in the voter assistance form largely mirrors the information contained in voter registration records, which are accessible to the public generally, and the information contained in precinct lists, which are accessible to named groups and "other persons at the Board [of Elections'] discretion," and that there is a strongly substantiated public interest in the regulation of elections.
We therefore conclude that the Magoffin County Clerk's reliance on KRS 61.878(1)(a) as the basis for denying Mr. Long access to the voter assistance forms identified in his request was, with the exception of the protection it extends to social security numbers appearing on those forms, misplaced.
With regard to that protection, we note that in Zink v. Commonwealth of Kentucky, the Kentucky Court of Appeals characterized a social security number as "no less than the keys to an information kingdom as it relates to any given individual" that affords "[a]ccess to a wealth of data compiled by both governmental agencies and private enterprises . . . ." Zink at 829. It is widely recognized that disclosure of this item of information, together with other personal identifiers, exposes the holder of that number to identify theft and other personal and economic harm. Based on this recognition, Congress has enacted legislation prohibiting disclosure of social security numbers collected in accordance with laws enacted on or after October 1, 1990, 3 and legislation is pending in the current session of the Kentucky General Assembly 4 that would require public agencies to redact social security numbers from public records. Under these circumstances, and in view of the fact that "[n]o person shall be denied the right to register [to vote] because of his failure to include his Social Security number," 5 and that the numbers are omitted from those voter records otherwise made public by statutory enactment, we find that the Magoffin County Clerk should copy the voter assistance forms to which Mr. Long requested access and permit him to inspect those copies after redacting the social security numbers appearing thereon.
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.
Distributed to:
Gordon B. LongP.O. Box 531Salyersville, KY 41465
Haden B. Arnett, Clerk Magoffin County CourtP.O. Box 530Salyersville, KY 41465
Footnotes
Footnotes
1 KRS 61.878(1)(k) and (l) authorize public agencies to withhold:
(k) All public records or information the disclosure of which is prohibited by federal law or regulation.
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.