Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the University of Louisville violated the Kentucky Open Records Act in denying the request submitted by Karen Bragg on behalf of Pick-A-Prof for the "mailing list for the incoming freshman and transfer students that have been admitted to the University of Louisville for the Fall 2005 academic semester." Because Pick-A-Prof has not articulated, nor can this office envision, any public purpose related to the Open Records Act which would be directly advanced by disclosure of their names and addresses, and the competing privacy interests of those students in such personal information outweighs any unarticulated public purpose, disclosure of the requested records would constitute a clearly unwarranted invasion of personal privacy in our view. Accordingly, U of L properly invoked KRS 61.878(1)(a) in denying Pick-A-Prof's request.
By letter directed to Dr. William Morison, U of L Records Custodian, via electronic mail, Pick-A-Prof requested a copy of the specified "mailing list. " Although any format in which the data is maintained is acceptable, Pick-A-Prof would prefer to receive the information in an electronic format. Among the data being sought is the "Student's Full Name" and the "Student's Permanent Mailing Address." Acknowledging "there may be costs associated with" honoring this request, Pick-A-Prof requested an estimate prior to completion.
On April 20, 2005, Dr. Morison advised Pick-A-Prof via e-mail that "postal and e-mail addresses of [U of L] students who have made their addresses available may be accessed via U of L's web pages at www.louisville.edu/home/search.html. "That said, Dr. Morison further advised Pick-A-Prof that "for many years it has been U of L's practice not to release lists of the names and addresses of employees, students, andalumni for commercial purposes absent a specific agreement with a vendor or other party to contact our students, faculty, staff, and alumni, on our behalf." Neither the Family Educational Rights and Privacy Act nor the Open Records Act obligates U of L to do so in Dr. Morison's view. In response, Ms. Bragg, Pick-A-Prof Director of University Relations, clarified that Dr. Morison had addressed students, faculty, and alumni, but "did not address admitted individuals." According to Pick-A-Prof, incoming freshmen and transfers that have been admitted "are not yet considered students" so the requested information is "public record" under FERPA.
On the same day, Dr. Morison acknowledged his initial failure to distinguish between "those who have been admitted but not enrolled, and those who are enrolled. " According to Dr. Morison, the records of students admitted but not enrolled do not fall within the definition of "education records" under FERPA. Nevertheless, Dr. Morison believes that neither FERPA nor the Open Records Act obligates U of L to release the requested information to third parties without the consent of those students. "It has long been U of L's policy not to release such lists to vendors in the absence of the student's express permission and in the absence of a contract with the vendor. "
While Pick-A-Prof understands that U of L generally has a policy against releasing the records for a "commercial purpose, " Ms. Bragg's interpretation of the relevant law is that a commercial purpose does not "negate the 'openness' of the [records]." Citing KRS 61.874(4) , Pick-A-Prof correctly observes that a requester "may be required to disclose whether he/she will use the records for a 'commercial purpose' and may be charged a higher fee." 1 In addition, the requester "must use the records only in the manner he or she has disclosed." Given the expansive definition of "public record" codified at KRS 61.870(2), Pick-A-Prof considers the mailing list requested to be open. Although the holding of 00-ORD-119 is not directly on point, Ms. Bragg asserts that "it certainly appears to weigh in [Pick-A-Prof's] favor."
On May 1, 2005, Dr. Morison summarized the position of U of L with respect to releasing lists of students' names and addresses as follows:
In short, with few exceptions, we don't give them out. There are times when one of the university's colleges or departments will need to communicate with its students. In most such instances we permit them to do so. Also, there are occasions where the university contracts with a vendor to provide a service. We might provide a list to that vendor so it can communicate with our students. Of course we require the vendor to [certify] that it won't further publish or use the list, etc. We are required by law to provide lists to the military for recruitment purposes.
With the noted exceptions, U of L does not release the names and addresses of employees, students, or alumni "to vendors or to anyone else." In U of L's view, neither FERPA nor the Open Records Act requires it to release such records. By letter directed to this office on May 4, 2005, Ms. Bragg initiated this appeal on behalf of Pick-A-Prof.
Upon receiving notification of Ms. Bragg's appeal from this office, Angela D. Koshewa, University Counsel, elaborated upon U of L's position. According to Ms. Koshewa, Pick-A-Prof has essentially requested that U of L "create a mailing list, as opposed to" requesting a record or records. Even if such a list could be produced, and should be provided, as Pick-A-Prof maintains, U of L "believes the providing of a 'permanent mailing address' for individuals admitted to the University would constitute an unwarranted invasion of their personal privacy [pursuant to] KRS 61.878(1)(a)." In support of this position, U of L cites Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994). As observed by U of L, "disclosure of individua[ls'] permanent addresses serves no public good in informing the public as to any function of the University" in this case, whereas disclosure of the information requested in 00-ORD-119 "was necessary to shine the public light on how the school system was assigning students to traditional schools." Of relevance here, Zink "recognized and upheld, the right to be left alone."
Based on the foregoing, U of L asks this office "to confirm that the Open Records Act does not require the creation or provision of mailing lists [or], 2 in the alternative," to affirm that "the privacy interests in one's home address outweighs any possible public interest" implicated here. Because U of L has properly applied the balancing test established by the Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. The Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324 (1992), and refined in Zink, this office affirms the denial of Pick-A-Prof's request by U of L on the basis of KRS 61.878(1)(a). 3
"The unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure 'may cause inconvenience or embarrassment to public officials or others.'" Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing KRS 61.871. Despite this "manifest intention to enact a disclosure statute," the General Assembly has mandated that certain records are not subject to public inspection. Among those records excluded from application of the Open Records Act absent a court order are public 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).
Based upon the exclusionary language contained in KRS 61.878(1):
[W]e 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 and the need for governmental confidentiality . . . suggest[ing] an absence of legislative intent to create unrestricted access to records.
Beckham, supra, at 578; 03-ORD-084, p. 4. When denying access to public records pursuant to this exception, the burden of proof rests with the agency. KRS 61.880(2)(c).
In Kentucky Board of Examiners, Ky., 826 S.W.2d 324 (1992), the Kentucky Supreme Court established the standard by which this office must analyze the propriety of a public agency's reliance on KRS 61.878(1)(a) in denying access to public records. 4 Recognizing that the Act "exhibits a general bias favoring disclosure, " the Court formulated a balancing test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id at 327-328. Logic dictates that the circumstances of a particular case will affect the balance. Id. at 328. As observed by the Court, KRS 61.878(1)(a) contemplates a "case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof." Id. Resolving the question of whether a public agency properly relied upon KRS 61.878(1)(a) in denying access to public records necessarily turns on whether the offense to personal privacy that would result from disclosure of the requested information outweighs the benefit to the public, and is an "intrinsically situational" determination that can only be made within a "specific context." Id. As noted, the "clearly unwarranted" standard "tips the scales in favor disclosure. " 03-ORD-084, p. 4.
To reiterate, the public's "right to know" under the Act is premised upon the right of the public to expect its agencies to properly execute their statutory functions. Kentucky Board of Examiners, supra, at 328. Generally speaking, inspection of public records 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. " Id. Echoing this view, the Court of Appeals refined the Kentucky Board of Examiners standard in Zink. As summarized by the Court of Appeals:
[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. [ Kentucky Board of Examiners at 328]. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
Zink, supra, at 828.
Having recognized a cognizable privacy interest in the requested forms since much of the information contained therein touched upon "the personal features of private lives," the Court turned to the issue of whether an invasion of privacy was warranted by weighing the public interest in disclosure against the privacy interests involved. Id. Of particular relevance here, the Court observed:
[O]ur 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 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 princip[al] purpose of the Open Records Act. This is the approach the United States Supreme Court has taken in 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). . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
(Emphasis added). Zink at 828-829.
Guided by the foregoing, this office must determine whether the records in dispute contain information of a personal nature and, if so, whether disclosure of the information to Pick-A-Prof would serve a purpose related to the Open Records Act. If not, the privacy interests of the students whose identifying information is at issue necessarily outweighs the commercial interests of Pick-A-Prof. In making this determination, the Attorney General is guided by the general principle that the Open Records Act "exhibits a general bias favoring disclosure, " Kentucky Board of Examiners, supra, at 327, and the legislative pronouncement that "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed." KRS 61.871 .
With respect to the threshold inquiry of whether the names and addresses requested constitute information of a "personal nature," the Supreme Court has expressly recognized that information such as home address and telephone number "are generally accepted by society as details in which an individual has at least some expectation of privacy. " Zink at 828. Although much of this information is contained in public records which are subject to inspection, such as police accident reports, and is often accessible via sources such as telephone directories and voter registration lists, "this information is no less private simply because [it] is available someplace." Id. As in Zink, the instant appeal requires us to weigh the public interest in disclosure, "which is de minimis at best," against the interests of the individuals in nondisclosure of the personal information requested which he or she "may fervently wish to remain confidential or [have] only selectively released." Id. at 829. If the information is released, the students would then be subjected to receiving unsolicited mail from Pick-A-Prof, and perhaps such mail or telephone calls from others.
In our view, the following excerpt from Zink is determinative of the issue presented:
The United States Court of Appeals for the Sixth Circuit Court when confronted with a [Freedom of Information Act] request that would involve the release of home addresses of those with Veterans' Administration guaranteed loans stated that "'[t]here 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." Heights Community Congress v. Veterans Administration, 732 F.2d 526, 529 (6th Cir. 1984), cert. denied, 469 U.S. 1034, 105 S. Ct. 506, 83 L. Ed. 2d 398 (1984).
Id. at 829. Like the courts, this office must be "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." Id. One of our most time-honored rights is "the right to be left alone," and this office fails to see how an individual who happens to be admitted or transfer to U of L, or any another state university, forfeits that right to privacy absent a prevailing public interest. On the facts presented, the only interest promoted by disclosure would apparently be improving the profit margin of a private entity. While perfectly legitimate, this is not the principal purpose of the Open Records Act. Accordingly, disclosure of records containing personal information like the names and addresses of incoming freshmen and transfer students, assuming any such records exist, would constitute a "clearly unwarranted" invasion of their privacy.
Although neither party has cited, nor has our research revealed any binding authority which is directly on point, further support for this conclusion is found in Kestenbaum v. Michigan State University, Mich. Ct. App., 294 N.W.2d 228 (1980). In Kestenbaum, the Michigan Court of Appeals concluded that a "computer tape" containing the names and addresses of students was exempt under § 13(1)(a) of the FOIA because "release of the information would not further the purpose of the FOIA since plaintiff sought this information for commercial gain, not so that he might be able to monitor governmental affairs." Id. at 236. Although the two are not mutually exclusive under the Open Records Act, the reasoning of Kestenbaum is equally applicable here.
Even assuming that a list exists which is responsive to the request of Pick-A-Prof:
The list of names requested by [Ms. Bragg] is not related to the affairs of government in such a way as to constitute a basis for official decisions on the part of the University. The release of these names and addresses and the other information contained in the student directory does not assist the general public in such a way as to permit them to fully participate in the affairs of government. The only reason [Pick-A-Prof] desired the information in the form requested was to develop a mailing list so that [it] could engage in a commercial enterprise of mailing notices for and on behalf of other parties who pay for the service. We do not believe this purpose outweighs the invasion of the students' privacy which would result, . . .
Id. at 235. As in Zink, the relevant public interest supporting disclosure here is "nominal at best." Id. at 829. Disclosure of the information Pick-A-Prof 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." Id. That being the case, U of L did not violate the Open Records Act in denying access to the requested "mailing list" on the basis of KRS 61.878(1)(a). In light of this determination, consideration of the remaining arguments advanced by the parties is unnecessary.
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.
Karen BraggDirector of University RelationsPick-A-ProfP.O. Box 50022Austin, TX 78763-0022
Dr. William MorisonCustodian of RecordsUniversity of LouisvilleEkstrom Library, Room 421Louisville, KY 40292
Angela KoshewaOffice of General CounselUniversity of LouisvilleGrawemeyer Hall, Room 206Louisville, KY 40292
Footnotes
Footnotes
1 Pursuant toKRS 61.870(4):
(a) "Commercial purpose means the direct or indirect use of any part of a public record or records, in any form, for sale, resale, solicitation, rent, or lease of a service, or any use by which the user expects a profit either through commission, salary, or fee.
(b) "Commercial purpose" shall not include:
1. Publication or related use of a public record by a newspaper or periodical;
2. Use of a public record by a radio or television station in its news or other informational programs; or
3. Use of a public record in the preparation for prosecution or defense of litigation, or claims settlement by the parties to such action, or the attorneys representing the parties[.]
Here, Pick-A-Prof acknowledges that the records are being requested for a "commercial purpose, " U of L may therefore impose a "higher [or reasonable] fee" pursuant to KRS 61.874(4)(a) and (c), and the records may be used only for the "stated commercial purpose" as provided by KRS 61.874(4)(b). To this limited extent, the identity of the requester and the purpose for which the records are being requested is relevant. With respect to the application of these provisions, 04-ORD-054, a copy of which is attached hereto and incorporated by reference, is instructive.
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2 Public agencies such as U of L are not statutorily required to compile a list or create a record to satisfy a particular request. On this issue, the analysis contained in 05-ORD-006, a copy of which is attached hereto and incorporated by reference, is controlling. Given our resolution of the issue relative to KRS 61.878(1)(a), further elaboration is unnecessary.
3 Compare 03-ORD-120, in which application of the balancing test mandated the opposite result.
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4 "A plain reading of subsection (1)(a) reveals an unequivocal legislative intention that certain records, albeit they are 'public,' are not subject to inspection, because disclosure would constitute a clearly unwarranted invasion of personal privacy. " Kentucky Board of Examiners, supra, at 327.
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