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 Louisville/Jefferson County Department of Public Works properly relied on KRS 61.878(1)(a) in partially denying W. W. Chilton's November 22, 2004, request for records relating to the removal of selected political signs from the dedicated right-of-way along Rudy Lane, and in subsequently denying his November 30, 2004, request for the "Service Request Detail, Service # 2835737, replete with the name of the Primary Caller having called in the complaint." For the reasons that follow, we find that the Department's reliance on the cited exception was misplaced.
On October 28, 2004, political signs for candidates for the Windy Hills City Council who were endorsed by, and included, Mr. Chilton, and that had been placed along the Rudy Lane right-of-way by Mr. Chilton, were removed by the Louisville/Jefferson County Metro Department of Public Works in response to a complaint lodged by an individual whose identity is the focus of this appeal. No political signs, other than those attached to orange steel stakes which Mr. Chilton had erected, were removed. Upon inquiry, Mr. Chilton learned that employees at the Department's First District Compound received a Service Request Detail to remove the political signs on orange stakes.
On November 22, Mr. Chilton submitted an open records request to the Department for records identified as follows:
. All written and/or computer generated work orders and/or instructions for the 1st District to remove Rudy Lane political signs on Thursday, October 28, 2004
. Metro's written record into the promised investigation into the targeted sign removal
. Metro's written, telephonic, or email record of the sign complaint having been made.
On November 30, 2004, the requested records, including the Service Request Detail documenting the complaint and action taken, were released to Mr. Chilton, but the name of the complainant was redacted. The accompanying letter cited no open records exception authorizing nondisclosure of the complainant's name.
Shortly thereafter, Mr. Chilton resubmitted his request for an unredacted copy of the Service Request Detail. On December 3, 2004, Assistant Jefferson County Attorney N. Scott Lilly responded on behalf of the Department. Relying on KRS 61.878(1)(a), Mr. Lilly explained:
[T]he unlawful placement of the political signs in a public right-of-way was verified by Department personnel which verification made the original complaint redundant. In light of the Department's independent verification of the unlawful signage placement, divulging the identity of the complainant, who reasonably expected confidentiality, ". . . would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a).
In closing, Mr. Lilly noted that any time it receives a complaint concerning possible violations, the Department is "legitimately concerned that divulging the identity of a complainant to any person could subject a complainant . . . to possible retaliation." Dissatisfied with the Department's supplemental response, Mr. Chilton initiated this appeal asserting that the public's right to know whether "possible political pressures were affecting this agency's performance of its public duties" is superior to the unsubstantiated privacy interest asserted on the complainant's behalf.
Upon receipt of this office's notification of Mr. Chilton's appeal, the Department elaborated on its position. Noting that Mr. Chilton's request "does not focus on the acts or operations of the Department but focuses on the identity of the person who reported the illegally placed signs," and inferring from this that he "is not the least bit interested in departmental actions, policies, and procedures and merely seeks the identity of the reporting person for the purpose of retribution," the Department acknowledged the deficiencies of its "previous unwritten policy of blanket confidentiality" relative to complainant's names, but reaffirmed its belief that in the present situation the complainant "could reasonably expect confidentiality" and that his or her privacy interest therefore outweighed the public's interest in disclosure.
In support, the Department observed:
[T]he Department's Service Request Detail simply refers to such person as the "primary caller, " [and] it is unfair to classify such person as an actual complainant as that term is ordinarily understood. Unlike an actual "complainant," who usually signs a formalized document, under oath, which seeks either criminal sanctions or civil remedies, the instant "primary caller" merely advised the Department of obstructions in the right-of-way that the person stated "looks terrible." . . . Certainly, such a person would not reasonably believe that his identity would be divulged as part of an open records request and such person would have a reasonable expectation of confidentiality when contacting a governmental agency to make such a report. Moreover, at least from the Department's perspective, such person's expectation of confidentiality would be all the more heightened under the circumstances here if the caller later had been made aware that all the communications with Mr. Chilton demonstrated he was bent on retribution against the caller rather than rectifying an admitted Department deficiency in the execution of its policy to remove all obstructions in a public right-of-way.
Warning of the potential chilling effect that compelled disclosure would have on these facts, the Department concluded that it was obligated to invoke KRS 61.878(1)(a) "to insure the confidentiality of a civic-minded citizen who took the time to report unsightly obstruction free right-of-ways. " Respectfully, we disagree.
KRS 61.878(1)(a) excludes from the application 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. " In 1992 the Kentucky Supreme Court established a standard by which to judge the propriety of a public agency's invocation of this exception. Recognizing that the Open Records Act "exhibits a general bias favoring disclosure, " the Court held that "there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests."
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327, 328 (1992). The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory functions and individual privacy interests. Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Id. at 328.
In
Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the Kentucky Court of Appeals elaborated on this "mode of decision":
[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. [ Board of Examiners ] at 327.
The court emphasized that the only relevant public interest to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act which is "to further the citizens' right to know what their government is doing and . . . subject agency action to public scrutiny. " Zink at 828.
In 96-ORD-164, this office affirmed the Natural Resources and Environmental Protection Cabinet's partial denial of a request for records relating to a telephone complaint about waste management practices at a county landfill. The Cabinet had relied on KRS 61.878(1)(a) in support of its decision to redact the complainant's name, address, and personally identifiable information following the complainant's requests for anonymity. Citing an earlier opinion in which this office determined that a complainant's identity could be withheld under the cited exception where the complainant's privacy interest outweighs the public's interest in disclosure, and in light of the Cabinet's assurances that all "substantive factual information on the allegations against the landfill" had been disclosed, we found no violation of the Open Records Act "[o]n the specific facts of this case . . . ." At page 3 of 96-ORD-164, we reasoned:
Because there is a compelling privacy interest, here strongly substantiated by the complainant's repeated requests for anonymity, and a de minimus public interest, here substantiated by the Cabinet's assurances that all relevant factual matters have been disclosed, . . . we find that the Cabinet has met its statutory burden of proof relative to the invocation of KRS 61.878(1)(a). Zink v. Commonwealth of Kentucky, [at 829] (holding that "[d]isclosure of the information appellant seeks would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny" ).
It is the absence of a substantiated privacy interest, in the form of a request for anonymity, and/or circumstances warranting a reasonable expectation of confidentiality, and the presence of a compelling public interest in ascertaining whether the Department's performance of its public duty to remove all political signs obstructing the right-of-way along Rudy Lane, and not just those erected by Mr. Chilton, was influenced by the identity of the complainant, 1 that distinguishes this appeal from 96-ORD-164 and its predecessors.
By letter dated November 2, 2004, and attached to Mr. Chilton's appeal as Exhibit 3, Public Works Directors James C. Adkins asserted:
The policy of the Public Works Department is to remove anything placed illegally in the right-of-way of roads owned by Louisville/Jefferson County Metro Government. This action is required under KRS 179.240.
(Emphasis in original.) It is unrefuted that only those signs erected by Mr. Chilton on his own behalf and on behalf of the candidates he endorsed, were removed from a right-of-way apparently cluttered with other political signs. No explanation is offered for the Department's failure to strictly adhere to its own policy and public duty. Mr. Chilton postulates his right of access to an unredacted copy of the Service Request Detail on the public's interest in determining whether the complainant exerted "political pressures" to influence the Department in the "performance of its public duties." Disclosure of the complainant's identity, he maintains, will advance the public's right to know "what their government is doing and . . . subject agency action to public scrutiny. " Zink at 828. We fully concur with him in his view that this is a significant open records related public interest that, given the bias favoring disclosure which Kentucky's legislature and courts have recognized, will only yield to a clearly superior privacy interest. Respectfully, we cannot agree that the Department has articulated such a privacy interest.
The Department proceeds in its belief that the complainant has a compelling privacy interest in avoiding retaliation from the erroneous assumption that the sole focus of Mr. Chilton's open records inquiry was determining the complainant's identity. The record on appeal demonstrates that Mr. Chilton's original request extended to records relating to "the promised investigation into targeted sign removal. " Because records responsive to this request that were released to him did not disclose why the Department failed to properly execute its public function in removing all political signs from the right-of-way along Rudy Lane, Mr. Chilton resubmitted his request for an unredacted copy of the Service Request Detail in an attempt to ascertain whether the complainant's identity played a role in the Department's failure to discharge its duties in a uniform fashion. Moreover, the record on appeal is devoid of facts or circumstances that would warrant this office in concluding that the complainant requested, or reasonably expected, anonymity in lodging his or her complaint. As the Department is quick to note, it is unlikely that "such an inconsequential election" as that to which the political signs related would evoke sufficient passion to precipitate retaliatory acts of any kind, much less retaliatory acts of such a grave character that the complainant would entertain reasonable apprehension, and, accordingly, reasonably expect anonymity. And while the complainant might prefer that his or her identity not be revealed, the Open Records Act is abundantly clear in providing that "free and open examination of public records is in the public interest . . . even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871.
Given the basic policy of the Act, as set forth above, the requirement that the exceptions provided for by KRS 61.878, including KRS 61.878(1)(a), must be strictly construed, 2 along with the requirement that the Department has the burden of proof in sustaining its action, 3 and the judicial recognition that the Act "exhibits a general bias favoring disclosure, " 4 we find that the negligible privacy interest implicated by disclosure of the complainant's name is clearly inferior to the public's interest in ascertaining whether "possible political pressures were affecting this agency's performance of its public duties." However unlikely this scenario, we believe that only through disclosure of the complainant's name can this issue be finally resolved. In so holding, we find that the offense to personal privacy which will result from disclosure of the name is outweighed by the benefit to the public, and that the "clearly unwarranted" language found in KRS 61.878(1)(a) tips the scales in favor of disclosure.
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.
W. W. Chilton, III615 Rudy LaneLouisville, KY 40207
James C. Adkins, DirectorDepartment of Public Works531 Court Place, Suite 401Louisville, KY 40202-3391
Irvin G. MazeJefferson County Attorney2086 Hall of Justice600 W. Jefferson StreetLouisville, KY 40202
N. Scott LillySecond Assistant Jefferson County Attorney531 Court Place, Suite 1001Louisville, KY 40202
Footnotes
Footnotes
1 We find unpersuasive the Department's argument that the complainant here is a "Primary Caller" and therefore subject to a reduced standard of accountability, as well as its argument that because the reported violation was independently verified by Department employees, his or her complaint was "redundant" and subject to a reduced standard of accessibility. This office rejected an argument similar to the first in 94-ORD-20, concluding that an agency's "attempt to categorize complaints as formal statutory complaints and informal telephone complaints [was] analogous to the Board of Medical Licensure's attempt to categorize complaints [in Kentucky Board of Medical Licensure v. Courier-Journal, Ky. App., 663 S.W.2d 953 (1983)] and no more legally sound." 94-ORD-20, p. 6. With reference to the second argument, we find nothing in the Open Records Act to support the view that a record forfeits its public character when public employees independently verify its contents.
2 KRS 61.871.
3 KRS 61.880(2)(c).
4 Board of Examiners at 327.