Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jefferson County Public Schools properly relied on KRS 61.878(1)(a) in denying John and Beverly Glascock's requests for billing records from July 2002 to June 2003 for a cell phone issued by JCPS to Moore Traditional Middle School Principal Thomas Gaebler. For the reasons that follow, we find that JCPS's reliance on the cited exemption was misplaced.
In her March 10, 2004 response to Ms. Glascock's March 5 request, JCPS Public Information Officer Lauren Roberts produced copies of the requested billing records but redacted personal telephone numbers called on the cell phone. Relying on KRS 61.878(1)(a), she explained that Mr. Gaebler reimbursed JCPS for the cost of these calls and that JCPS employees "are not prohibited from using District cell phones for personal calls as long as the employee reimburses the District for such calls." It was her position that the personal telephone numbers "represent information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
Shortly thereafter, Mr. Glascock submitted a request for the same records, "waiv[ing] any personal privacy rights to any personal calls to telephone number 228-6611, as John Glascock, Jr., is the subscriber of that number, or 417-6611, as GMc Management Corporation is the subscriber of that number." He explained that GMc Management Corporation was a Kentucky corporation which was dissolved in 2000, and of which he was the sole shareholder and president. Further, Mr. Glascock explained he is sole shareholder of GMc's successor corporation, Human Capital Management, Inc., which has assumed the 417-6611 telephone number.
On March 18, 2004, Ms. Roberts notified Mr. Glascock "that a copy of these records was provided to Ms. Beverly J. Glascock[,] on March 10, 2004." In the interest of avoiding payment of duplicative copying charges, she reminded him that "telephone numbers for personal telephone calls, the cost of which were reimbursed to the District by Mr. Gaebler, have been redacted from the records." In response to his waiver of privacy, she advised:
The personal privacy interest is that of the employee, in this case, the retired employee, Mr. Gaebler. Since Mr. Gaebler has reimbursed the school District for these personal phone calls, there is no public interest in the redacted information sufficient to outweigh Mr. Gaebler's personal privacy interest.
This appeal followed.
On behalf of her husband and herself, Ms. Glascock challenges JCPS's position asserting that "[t]he KRS 61.878(1)(a) privacy exemption does not work to shield public agencies or their employees from public scrutiny. " In support, she cites a series of open records decisions in which the Attorney General determined that records documenting the use of public equipment by public employees on public time are generally subject to public inspection. In her view, "Kentucky taxpayers have a legitimate interest in knowing how their public school officials use public equipment as well as how these officials spend their workday," and those officials should not be permitted to shield themselves from public scrutiny of their misuse of such equipment "by simply offering to pay some money back to the public agency after such misuse is discovered." 1 Emphasizing that "the subscriber at the phone number in issue has waived public disclosure of the numbers," she concludes that the public's interest is "necessarily greater than Mr. Gaebler's privacy interest . . . ."
In supplemental correspondence directed to this office following commencement of this appeal, Ms. Roberts responded to Ms. Glascock's argument that "in matters of public education, the right to privacy, at least as it relates to the use of public equipment, is nonexistent." She advised:
With regard to cellular telephone billing records for cell phones issued to employees, such records contain not only the telephone numbers of the calls made by the employee as part of the business of the public school district, but also the numbers of telephone calls made as a result of incidental personal use. Such telephone numbers may include the employee's home or personal cell telephone numbers, doctors' telephone numbers, or the telephone number of the bank where the employee banks. We believe that, in the present case, Mr. Gaebler had a legitimate expectation of privacy when he made such telephone calls.
We also believe that there has been recognition by the Office of the Attorney General and the Courts of Kentucky of the protection of certain personal information of employees (92-OAG-59, 96-ORD-232.) In Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the court observed that, "While the place of one's employment may not arise to a personal level, as one generally does not work in secret, other information such as marital status, number of dependents, wage rate, social security number, home address, and telephone number are generally accepted by society as details in which an individual has at least some expectation of privacy. "
The only public interest expressed by Ms. Glascock is in the form of broad statements regarding taxpayers' interest in how their public school officials use public equipment as well as how these officials spend their workday. The records provided to Ms. Glascock show when all phone calls were made and how long all of those phone calls lasted. Only the telephone numbers were redacted. We believe that we have balanced the public interest expressed with the personal privacy of the employee.
On this basis, Ms. Roberts concluded that Ms. Glascock failed to "assert[] a genuine public interest in the telephone numbers of the personal calls made by Mr. Gaebler," and urged this office to affirm JCPS's partial denial of her husband's request. Given this office's longstanding position on the right of public access to records reflecting public employee use of public equipment on public time, as well as the narrow scope of Mr. Glascock's request and the particular facts of this appeal, we cannot affirm JCPS's position.
KRS 61.878(1)(a) authorizes public agencies to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " The Attorney General has traditionally taken the position that in weighing the antagonistic public interest in knowing whether public servants are serving the public against the privacy interest in information of a personal nature, under the balancing test established by the Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the public's interest in disclosure of records documenting public employee use of public equipment is superior to the public employee's privacy interest. In so holding, we have been guided by the Court's observation that "the circumstances of a particular case will affect the balance," that the "statute contemplates a case-specific approach," and 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. at 328. We have also been guided by the awareness that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity," Id., and that the public's interest is premised on the public's right to know that its agencies are properly executing their statutory function and its public servants are serving the public.
In OAG 86-21, a decision predating the Court's 1992 Board of Examiners opinion, this office held that telephone records of the Legislative Research Commission were subject to public inspection. 2 In subsequent decisions, this holding was extended to records reflecting the names and facsimile numbers of all facsimile transmissions made for personal, and not agency purposes on agency equipment (96-ORD-238), a tape recording documenting a personal conversation of some duration between a Division of Fire and Emergency Services employee and another employee on a telephone extension dedicated to public use for 911 emergency calls (98-ORD-31), telephone records for calls originating from a telephone line used in a legislative leadership office (98-ORD-92), 3 copies of pornographic material copied from an internet site by a school district employee (99-ORD-112), personal computer files on a university owned computer (00-ORD-97), 4 and sheriff's department cellular telephone billing records (00-ORD-198 and 00-ORD-199).
As noted above, common to each of these decisions was the recognition that public equipment purchased from public funds, and used by public employees on public time, is intended for purposes related to public service. With specific reference to telephone billing records, we have observed:
Involved here are the telephone numbers of unnamed individuals, groups or companies who have been called, presumably by public officials, on telephones purchased or leased by a public agency with public funds. Since public officials or employees are calling on telephones of a public agency at the public's expense it is presumed, or at least it is hoped, that some kind of public business is being conducted or some kind of public service is being rendered.
While it is true that it should not be too difficult to ascertain what person, group or business has been called by the public agency once the telephone number has been obtained, it seems to us that this is a price that must be paid by citizens and residents in a free and democratic society. As a general proposition the public's business must be conducted in public. If a person has been called by a public agency he may have either requested something of the public agency or he may have done something affecting the public.
OAG 86-21, p. 3, 4.
Nevertheless, we have also recognized that there may be situations "when there is a legitimate need by a public agency to keep telephone numbers it has called confidential," and that "when those situations arise the burden should be on the public agency to justify, under the Open Records Act or some other legislative enactment, why the record with the telephone number should not be released." Id. at 4. Under this line of reasoning, it is incumbent on the agency to "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). In denying access to the excepted telephone entries, the agency must provide particularized justification for the partial nondisclosure. "The fact that individual entries on telephone records enjoy protection under the Open Records Act does not mean that the entire category of records may escape scrutiny for purposes of determining if public funds, time and personnel are being properly used." 98-ORD-92, p. 13. These concerns are not implicated in the appeal before us.
JCPS asserts that disclosure of unredacted copies of the disputed cell phone records might, for example, disclose Mr. Gaebler's home or personal cell phone number, his doctor's telephone number, or his bank's telephone number. We leave aside the issue of whether disclosure of these numbers would constitute a clearly unwarranted invasion of Mr. Gaebler's personal privacy, or the privacy of the individuals or entities called because Mr. Glascock's request is confined to telephone calls placed to telephone lines dedicated to his or his companies' use. As Ms. Glascock notes:
As the subscribers to these numbers, and as members of the public, Mr. Glascock and his company have an interest in knowing whether, and if so how many, calls were made to these numbers. Among other considerations, the number to which Mr. Glascock's company is the subscriber is a cell phone number for which Mr. Glascock's company is charged for incoming calls . . . . Mr. Glascock's company is in the position of being required to pay for unidentified incoming calls, some of which he has reason to believe were made from a [JCPS]-owned cell phone, without being able to confirm that fact by obtaining access to the relevant [JCPS] records.
We simply find no legally defensible basis for denying Mr. Glascock's narrowly drawn request when the de minimus privacy interests implicated are so clearly outweighed by the public's right to know that its public agencies are properly executing their statutory functions and its public servants are indeed serving the public. Board of Examiners at 328.
As noted, Ms. Glascock furnished the Attorney General with copies of some of the redacted billing statements released to her by JCPS. One of these, dated September 18, 2002, reflects 27 personal phone calls 5 of a total of 47 phone calls placed in a 13 day period. Many of these calls were placed while Mr. Gaebler was "on the clock," and his ability to "serve the public" correspondingly reduced. All of the calls were originally characterized by Mr. Gaebler as "school business calls." Only after he was confronted with the JCPS audit did he acknowledge that many of the calls were personal in nature. These facts are indicative of employee misuse of public equipment and time. Compare Stewart, note 4 above. In light of these irregularities, and the presence of evidence of misuse of public equipment and time, we find that the public's interest is heightened and that JCPS erred in redacting these entries. We fully concur with Ms. Glascock in her view that an agency should not be permitted to shield records reflecting employee misconduct from public scrutiny by asserting that the employee took subsequent measures to remedy that apparent misconduct.
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.
Beverly J. Glascock2944 Lexington RoadLouisville, KY 40206
John R. Glascock, Jr.P.O. Box 501Prospect, KY 40059
Lauren E. RobertsPublic Information OfficerJefferson County Board of EducationVan Hoose Education CenterP.O. Box 34020Louisville, KY 40232-4020
Dan McCubbinGeneral CounselJefferson County Board of EducationP.O. Box 34020Louisville, KY 40232-4020
Footnotes
Footnotes
1 Ms. Glascock subsequently provided this office with copies of theredacted billing records from August 2002 through February 2003 for Mr. Gaebler's JCPS-owned cell phone, noting that he "certified on each of the monthly bills that all calls shown on the bills were made for 'school business' purposes." She observed:
It was not until April 2003 - some six months after many of these calls had been made by Mr. Gaebler and had been paid for with public funds - that JC[PS] discovered through an internal audit that hundreds of these calls were not made for school business purposes. Upon being confronted with the results of the audit, Mr. Gaebler agreed to reimburse JC[PS] for certain calls which are now characterized as "personal calls" and therefore not subject to disclosure under the Kentucky Open Records Act. Given the fact that Mr. Gaebler initially certified that these calls were "school business" calls, he clearly had no intention of reimbursing JC[PS] for the calls, and thus he clearly had no expectation of privacy, at the time he made the calls and made that certification.
She again rejected the proposition that "any activity of a public employer which involves the use of public property could be transformed into a 'personal' activities merely because the public employee chooses to reimburse the public agency for the cost of that activity." The JCPS did not deny these allegations.
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2 Since June 2003, control of the records of the Legislative Research Commission and the General Assembly is vested in the Legislative Research Commission, and requests for review of the Commission director's determination relative to disclosure "shall be made by the Commission . . .," rather than by the Attorney General. KRS 7.119(3).
3 See note 2, above.
4 This decision was appealed pursuant to KRS 61.880(5)(a) and culminated in the unpublished opinion cited by JCPS, Stewart v. University of Louisville, No. 2001-CA-000980-MR (Ky. App. August 2, 2002). Although there is no prohibition on citation of this case to the Attorney General in the context of an open records appeal, we find the reasoning of that opinion inapposite. In Stewart, the court's decision turned on the absence of evidence that the public employee misused public equipment or time. The agency had no stated policy against the use of state owned equipment for personal reasons and the employee "was not on the clock." Stewart at p. 8. The unrefuted record in the appeal before us demonstrates widespread personal use of a public cell phone on public time, and an attempt to avoid reimbursing JCPS for calls made on the cell phone by characterizing them as "School Business Calls."
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5 Our calculations are based on the number of entries masked by JCPS as "personal" calls.
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