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 Transit Authority of Lexington (LexTran) violated the Kentucky Open Records Act in partially denying the request of Bobbie Martin, Financial Secretary, Local #639, for copies of "names, dates, of all accidents/incidents for period of 6-1-05 through 11-07-05" and "Names, date of hire, date of dismissal for employees dismissed for period 1-1-04 through 11-07-05" on the basis of KRS 61.878(1)(a). With respect to those responsive records already provided to Ms. Martin, any related issues are moot; this office must therefore decline to issue a decision per 40 KAR 1:030 Section 6. By initially failing to cite the applicable statutory exception and explain how it applies to the record(s) withheld, LexTran violated KRS 61.880(1). Because the significant interest of the public in monitoring the performance of the bus drivers whose names were withheld outweighs the minimal privacy interests of those public employees in protecting their identities, LexTran erred in relying upon KRS 61.878(1)(a).
In a timely written response, Geri Davidson, Director of Human Resources, advised Ms. Martin that LexTran would provide her with "the number of accidents during the period requested but will not provide names." With respect to Item No. 2 of Ms. Martin's request, LexTran provided a "list of all employees who left employment during the period requested." 1 Upon receiving notification of Ms. Martin's appeal from this office, Barbara A. Kriz responded on behalf of LexTran, advising this office that she has been retained by LexTran as counsel in this matter.
As observed by Ms. Kriz, LexTran provided Ms. Martin with a record entitled "LexTran Preventable Accident Summary," which contains the dates of accidents that occurred from January 19, 2005, through August 23, 2005, the accident numbers, the vehicle numbers, and brief comments regarding the cause of each accident. Citing KRS 61.878(1)(a), LexTran notes that only the names of the drivers involved in the accidents were omitted. 2 In LexTran's view, their names are information of a personal nature the disclosure of which constitutes "an unwarranted invasion of the personal privacy of the employee[s]." Relying upon 95-ORD-151, in which this office upheld a denial by the Transportation Cabinet of a request by a private investigator for access to the home addresses, social security numbers, and identities of vehicle owners involved in collisions, LexTran maintains that disclosure of the requested names would be similarly improper. Because the instant case is factually distinguishable insofar as the names are those of public employees acting in the scope of their employment, i.e., providing public transportation, as opposed to citizens operating private vehicles, this office respectfully disagrees.
Our analysis begins with those records to which LexTran has already provided Ms. Martin with access, namely, the "LexTran Preventable Accident Summary" with names redacted, and the complete list of "Employees Leaving Employment [f]or Period January 1, 2004, through November 7, 2005." 40 KAR 1:030 Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. As evidenced by the record, LexTran has provided Ms. Martin with copies of existing records which are responsive to her request with the names of the employees redacted from the accident summary per KRS 61.878(1)(a). With this exception, any related issues are moot. Accordingly, our review focuses exclusively upon whether LexTran properly redacted the names of employees from the Preventable Accident Summary pursuant to KRS 61.878(1)(a). In sum, LexTran's response was procedurally deficient and substantively incorrect.
As a public agency, LexTran 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. 3 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 LexTran's initial response are any reference to KRS 61.878(1)(a) and the requisite brief explanation of how the exception(s) applies. A public agency such as LexTran 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 the burden of proof imposed upon public agencies per KRS 61.880(2)(c). 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, the response of LexTran does not contain the specificity envisioned by KRS 61.880(1). From a procedural standpoint, LexTran violated the Open Records Act in failing to comply with the mandatory terms of this provision; bearing in mind that public agencies such as LexTran have the burden of proof per 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 LexTran's initial response was deficient. Edmondson v. Alig, supra, at 858; See 97-ORD-170. In responding to future requests, LexTran 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. 4
Turning to the substantive issue presented, this office is not persuaded that the names of public employees such as the bus drivers in question constitute information 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).
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. 5 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 the "mode of decision" employed 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. 6
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 Ms. Martin would serve the principal purpose of the Open Records Act. If not, the privacy interests of the bus drivers, whose names are at issue, necessarily outweigh the significant interest of the public in monitoring their job performance. 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.
In 93-ORD-32, the Attorney General addressed the issue of whether the Kentucky Lottery Corporation had properly invoked the "privacy exception" in withholding those portions of the specified employees' job applications and related documentation reflecting job experience/qualifications and the names of their references. Affirming the Corporation's decision to withhold the phone numbers, addresses, and "relationship to applicant" of persons named as references pursuant to KRS 61.878(1)(a), the Attorney General held that disclosure of information concerning job experience/qualifications and names of references would not constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a). As observed by the Attorney General:
This Office has, since 1989, consistently recognized that the inspection of the personnel records of public employees, such as applications for employment and resumes, which contain relevant prior work experience and educational qualifications, does not constitute an invasion of privacy. OAG 89-90; OAG 90-113; OAG 91-48; OAG 91-155; OAG 91-176; OAG 91-202; OAG 92-59; OAG 92-85. These opinions are premised on the idea that a person does not typically work, or attend school, in secret, and that therefore the employee's privacy interest in such information is outweighed by the public's right to know that that employee is qualified for public employment. Thus, in OAG 89-90, at p. 8, we observed:
Nevertheless, we also concluded in OAG 89-90 that information on an application or resume that is of a personal nature, within the meaning of KRS 61.878(1)(a), may be separated and redacted in accordance with KRS 61.878(4). Such information includes, but is not limited to, an employee's home address, social security number, and medical information.
93-ORD-32, p. 2. Noticeably absent from the list of information which may properly be redacted is the name of the public employee whose qualifications are at issue.
Of particular relevance here, this office recognized the following relative to the privacy interest of an individual in his or her name:
"[A] person's name is personal but it is the least private thing about him . . . . The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order (i.e., adoption records)." OAG 82-234, at p. 3. Although the public's interest in disclosure of the references submitted by a public employee is less compelling than its interest in knowing the employee's qualifications for public employment, we believe it is superior to the references' minimal privacy interest in their names. Accordingly, we find that [agencies] must release the names of references appearing on job applications and related documents, but may withhold information of a personal nature relative to the references, including but not limited to their phone numbers, addresses, and relationship to the applicant.
93-ORD-32, pp. 2-3 (emphasis added). See 05-ORD-037. In our view, this reasoning is equally applicable on the facts presented.
If the less compelling interest of the public in knowing the names of third parties (the references submitted by a public employee) is superior to the "minimal" privacy interests of the references, it necessarily follows that the heightened interest of the public in disclosure of public employees' names is superior to the correspondingly reduced privacy interests of the public employees, who do not work "in secret," in the "least private thing about" them. Absent statutory or judicial authority to the contrary, LexTran must provide Ms. Martin with the names of those bus drivers involved in "preventable" accidents as requested. To hold otherwise would defy both logic and precedent.
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.
Footnotes
Footnotes
1 In a letter directed to this office via electronic mail on December 13, 2005, Ms. Martin summarized the sequence of events which culminated in this appeal. Because Ms. Martin did not include this letter of appeal with the requisite documentation (written request and response) directed to this office, copies of which this office forwarded to LexTran along with the notification of appeal issued on December 6, 2005, this office was necessarily unable to include a copy of this letter with the notification. However, the content of the letter does not alter our analysis. In short, the letter raises only factual issues and unsubstantiated allegations which this office cannot resolve in the context of an Open Records appeal; further elaboration is therefore unnecessary.
2 On December 1, 2005, T. J. Thorn, Risk Management Director, forwarded a copy of the Preventable Accident Report to this office via facsimile. Ms. Martin submitted a copy of the list responsive to Item No. 2 of the request along with copies of her written request and the written response of LexTran for review.
3 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
4 As a corollary proposition, LexTran must 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. Although LexTran addressed these deficiencies on appeal, 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.
5 "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.
6 Applying this standard, the Court of Appeals determined that the 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.