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 Louisville Metro Housing Authority violated the Kentucky Open Records Act in denying the request of Jim Utley for access to "the official file contents of a hearing held within the last 30 days involving HUD resident Shirley Chesser, 8219 Minors Lane lot 172, Louisville, Ky" on the basis of KRS 61.878(1)(a). In failing to provide a brief explanation of how the cited statutory exception applies to the records withheld, the Authority violated KRS 61.880(1). Because disclosure of the records requested would further the principal purpose of the Open Records Act (enabling the public to monitor the expenditure of public funds and ensure that Section 8 regulations are being properly enforced), the public interest outweighs the relatively minimal privacy interest of the named resident in such records; KRS 61.878(1)(a) does not apply on the facts presented. Unless the Authority can otherwise satisfy the burden of proof imposed upon public agencies by KRS 61.880(2)(c), the Authority must honor Mr. Utley's request. In accordance with KRS 61.878(4), the Authority must separate any protected information but make the remainder of the file available for inspection absent a basis for denial articulated in terms of the statute.
By letter directed to Art Wasson, Director of Leased Housing, on June 10, 2005, Mr. Utley submitted the request at issue; Mr. Wasson denied his request in a timely written response, parroting the language of KRS 61.878(1)(a). On October 24, 2005, Mr. Utley initiated this appeal from the denial of his request.
Upon receiving notification of Mr. Utley's appeal from this office, Richard H. Nash, Jr., General Counsel, responded on behalf of the Authority. To clarify, Mr. Nash advises this office that Ms. Chesser is not a "HUD resident" ; Ms. Chesser is a "Section 8 resident in connection with [the Authority]." As explained by Mr. Nash, the Authority conducted a hearing to determine whether Ms. Chesser was complying with Section 8 regulations. Because the hearing officer did not find sufficient grounds to remove Ms. Chesser from the program, "Ms. Chesser remains a Section 8 resident today." In its entirety, Mr. Nash's argument is that "records of the aforementioned hearing are of a personal nature and public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " Based upon the limited evidence of record, this office respectfully disagrees.
As a public agency, the Authority is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records generally speaking. 1 More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208; 04-ORD-163; 04-ORD-106.
Noticeably absent from both the Authority's initial and supplemental responses are the requisite brief explanation of how the exception(s) applies. A public agency such as the Authority must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As repeatedly recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In the same vein, this office has also observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2 (emphasis added). In short, neither response contains the specificity envisioned by KRS 61.880(1). From a procedural standpoint, the Authority violated the Open Records Act in failing to comply with the mandatory terms of this provision; bearing in mind that public agencies such as the Authority have the burden of proof in denying requests pursuant to KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office concludes that both responses provided by the Authority were deficient.
Edmondson v. Alig, supra, at 858; See 97-ORD-170. In responding to future requests, the Authority should be guided by the longstanding principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187. 2
Turning to the substantive issue presented, this office is not persuaded that the "official case file of a hearing" at which final action was apparently taken (final as to that phase of the process at least) is among those records to which the protection of KRS 61.878(1)(a) extends. Citing KRS 61.871, the Kentucky Supreme Court has observed that 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 to others.'"
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994). 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, or any other, the burden of proof rests with the agency. KRS 61.880(2)(c). Because the Authority has made no attempt to describe the records being withheld or elaborate as to how the records fall within the parameters of KRS 61.878(1)(a), upon which the Authority relied exclusively in denying access, the Authority has not satisfied its statutory burden of proof. Compare 05-ORD-186 (affirming the denial by the Education Cabinet of a request for all decisions by the Kentucky Unemployment Insurance Commission from 2004 and January-May 2005 because the Cabinet satisfied its burden of proof relative to the cited federal and state confidentiality provisions, incorporated into the Open Records Act by operation of KRS 61.878(1)(k) and (l), which extend protection to the records at issue; this office defers to the interpretation of the public agency relative to binding confidentiality provisions absent legal authority to the contrary).
In
Kentucky Board of Examiners of Psychologists v. The Courier-Journal & Louisville Times Co., 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. 3 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. In
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994), the Court of Appeals refined this standard, elaborating upon its "mode of decision" as follows:
[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. 4
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, supra, 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 records to Mr. Utley would serve the principal purpose of the Open Records Act. If not, the privacy interest of Ms. Chesser, whose file is at issue, necessarily outweighs the significant interest of the public. 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.
Although neither party has cited, nor has our research revealed, any authority that is directly on point, this office is not without guidance in resolving the issue presented. At issue in 98-ORD-189, for instance, was whether the FIVCO Area Development District properly denied a request for "'copies of lists of Lawrence County residents receiving free taps to a current sewer project to serve the Point section.'" While acknowledging that disclosure of specific incomes would implicate a "strongly substantiated privacy interest, " the Attorney General concluded that disclosure of the requested names was "only minimally invasive (since it only indirectly reveals general income levels)." Id., pp. 5-6. In other words, the privacy interest of persons qualifying for free sewer taps in not having their names disclosed was not deemed significant. Relying upon Zink, this office conversely determined that the interest of the public in disclosure of the names was substantial. Id., p. 6. 5 Because the duty of the Lawrence County Fiscal Court was to authorize free sewer taps to private individuals based on specified income guidelines, and disclosing the identities of those individuals furthered the ability of the public to ensure that duty was being properly discharged, the resulting invasion of personal privacy was outweighed by the competing public interest in monitoring the conduct of the Fiscal Court. In conclusion, the Attorney General noted that his position was consistent with a line of decisions issued by this office addressing the conferral of public benefits on private citizens, such as OAG 78-828, OAG 80-288, OAG 89-36, and 96-O RD-29. Id. 6 In our view, the limited record on appeal presents no reason to depart from this approach.
Of particular relevance, this office reached the same result in an earlier appeal challenging a denial by the "Housing Authority of Jefferson County" based upon KRS 61.878(1)(a). At issue were all "records generated pursuant to inspections" of a specific housing unit occupied by a Section 8 participant for the prior tenancy, which would ""reveal the housekeeping of participants . . . and are of a personal nature'" according to the Authority. Id., p. 1. Applying the balancing test as articulated in Zink, the Attorney General first observed that it was "by no means self-evident that the inspection reports at issue in this appeal contain information of a personal nature." 97-ORD-170, p. 7. In addition, this office disagreed with the Authority's position that housekeeping practices "touch[] upon the most intimate and personal features of private lives." Board of Examiners, supra, at 328; 97-ORD-170, p. 7. Simply put, the privacy interest asserted by the Authority was not persuasively substantiated. To the contrary, the focus of the records at issue was the condition of the premises at the time of inspection rather than just the housekeeping practices of the occupants. 97-ORD-170, p. 7. Inspections are "almost certainly aimed at uncovering damage to the premises, including the removal or destruction of fixtures as well as conditions which might endanger the lives of the occupants, the soundness of its electrical, plumbing, and heating and cooling systems, and its overall integrity." Id. Accordingly, the Attorney General was not convinced that a tenant could reasonably expect such matters to be treated with the strictest confidence. Id., pp. 7-8.
On the other hand, the interest of the public was "strongly substantiated. " Id., p. 8. In support of this position, the Attorney General reasoned:
Pursuant to KRS 80.380, the Housing Authority [was] created to [ensure] that there is no shortage of "safe or sanitary dwelling accommodations . . . available to persons of low income at rentals they can afford[.]" Pursuant to 80.500(2), the Housing Authority is charged with the duty "to prepare, carry out, acquire, lease and operate housing; [and] to provide for the construction, reconstruction, improvement, alteration or repair of any housing project or any part thereof." Disclosure of inspection reports will further the public's right to know that the Authority is properly discharging this duty without compromising a significant privacy interest.
Id., p. 8. 7 Without further explanation as to the nature of the hearing or the records at issue, the same result necessarily follows here; the interest of the public in disclosure is both self-evident and superior to the unarticulated privacy interest of the named tenant. As before, a review of prior decisions further validates this position.
In OAG 78-828, the Attorney General was asked to determine whether the Louisville-Jefferson County Community Action Agency properly denied a request for records identifying the locations of winterization projects and the materials used by the agency in performing such projects. In relevant part, this office observed:
We know of no reason why the public may not inspect all of the files of the Community Action Agency. . . . There is no general law protecting the privacy of . . . benefits received from public agencies. On the contrary[,] the public is granted access to such information by the Open Records Law. A receiving of public benefits is not a matter of personal privacy as referred to in KRS 61.878(1)(a).
OAG 78-828, p. 4. When confronted with the issue of whether the Lexington-Fayette Urban County Housing Authority had properly relied upon KRS 61.878(1)(a) in denying a request for inspection reports on Section 8 housing units, the Attorney General observed:
The privacy exemption of the Open Records Law applies when there is a "clearly unwarranted invasion of personal privacy. " This wording calls for a weighing of an individual's right of privacy against the public's interest in the transaction involved. We believe that the public's interest in the proper administration of this program outweighs any privacy interest.
OAG 80-288, p. 3. Such is the case here. See also 96-ORD-29 ("disclosure of records relating to Community Development Block Grant funds is mandated by the Open Records Act. . . . Where public funds go, the public's interest follows"); OAG 89-36 ("the public is entitled to inspect public records regarding improvement of private property with federal grant monies . . .").
As evidenced by the foregoing, the interest of the public in monitoring the administration of the Section 8 program is paramount. Having failed to meet its burden of proof relative to KRS 61.878(1)(a), the sole basis for denial, the Authority must provide Mr. Utley with access to the file requested. Assuming the Authority can establish that any of the information contained in the file is exempt, the Authority may redact such information per KRS 61.878(4).
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.
Jim Utley183 Vivian WayMt. Washington, KY 40047
Art WassonDirector of Leased HousingLouisville Metro Housing Authority801 Vine StreetLouisville, KY 40204
Tim Berry, DirectorLouisville Metro Housing Authority420 S. 8th StreetLouisville, KY 40203
Richard Nash, Jr.235 South Fifth StreetLouisville, KY 40202-3255
Footnotes
Footnotes
1 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
2 As a corollary proposition, the Authority should bear in mind that a response pursuant to 40 KAR 1:030 Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Therefore, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. Id. See also 04-ORD-208.
3 "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.
4 Applying this standard, the Court of Appeals determined that Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying the request of an attorney for access to injury report forms filed with the Department which contained identifying information such as marital status, number of dependents, wage rate, social security number, home address, and telephone number. Zink, supra.
5 More specifically, the Court of Appeals recognized that information regarding an individual's income "is commonly treated circumspectly." Zink, supra, at 829. Accordingly, the amount of an individual's income is "generally accepted by society as [a] detail[] in which [he] has at least some expectation of privacy. " Id. at 828; 98-ORD-189, p. 5.
6 In making this determination, the Attorney General reiterated 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. . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.'" 98-ORD-189, p. 6, citing Zink at 828, 829.
7 Because the requester was not interested in learning the identity of the current tenant, this office left for another day the issue of whether disclosing the identities of Section 8 participants would constitute a clearly unwarranted invasion of personal privacy, noting that prior opinions strongly suggest that it would not. Id. Although 98-ORD-189 does not directly address this issue, the reasoning would be equally applicable in our estimation. Here, the identity of the tenant whose records are at issue is already known so further analysis is unwarranted.