Request By:
Eric James, Chairman
Concerned Members of the Kentucky Historical Society
637 North Third Street
Danville, KY 40422Kent Whitworth, Executive Director
Robert D. Clark Center for Kentucky History
Libby Jones, President
100 W. Broadway
Frankfort, KY 40601Sarah O. Hall
Office of Legal Affairs
Kentucky Commerce Cabinet
Capital Plaza Tower, 24th Floor
500 Mero Street
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Historical Society (KHS) violated the Open Records Act in denying Eric James' open records request for a copy of the KHS membership database and contact information, including name, home address, telephone number, and email address for all presiding officers and all its members. For the reasons that follow, we affirm the KHS's denial of disclosure of that portion of Mr. James' request relating to the members' home address, telephone number, and email address, under authority of KRS 61.878(1)(a), but find that, under the facts of this case, it improperly denied disclosure of the members' names.
By letter dated November 14, 2005, Sarah O. Hall, Attorney, Office of Legal Affairs, Commerce Cabinet, denied Mr. James' request, advising him:
This is in response to your letter dated November 4, 2005, to the Kentucky Historical Society. Thank you for your waiver of time frame for response. You have requested contact information, including address, telephone, and e-mail of all members.
The Historical Society denies your requests pursuant to KRS 61.878(1)(a), which concerns "public records containing information of a personal nature and where public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " Because the privacy interests of members of the Kentucky Historical Society, such as address, telephone, and e-mail information, substantially outweigh any negligible related public interest in disclosure, such disclosure would constitute a "a clearly unwarranted invasion of personal privacy under subsection (1)(a)" of KRS 61.878. Zink v. Commonwealth of Kentucky, 41 S.W.2d 825 (1994); Hines v. Commonwealth of Kentucky Department of Treasury, 41 S.W.3d 872 (2001; 05-ORD-104; 04-ORD-066; 02-ORD-177; 02-ORD-221; 94-ORD-67; 94-ORD-1; OAG 86-76.
Shortly thereafter, by letter dated November 21, 2005, Mr. James initiated the instant appeal. Challenging KHS's denial of his request, he argued in part:
The denial by the Commerce Cabinet in effect disenfranchises KHS members by denying them the information and means with which to exercise their rights and responsibilities as members. When members pay their dues, in return members receive the privilege, right, and fiduciary responsibility to elect officers of the KHS. The denial deprives access by members to members, also access by members to officers. Consequently, members are divested of their ability to be informed of the agency's business, address issues, select candidates, campaign, or elect candidates of their choice to the governing body of the KHS.
When assuming membership, members expect to be contacted regarding any and all issues and candidates pertinent to their membership status. This expectation of communication supercedes their own expectation of privacy because it is directly pertinent to their responsibilities as members. Without access to member contact information, no fair and level playing field inures to members for their maintenance of knowledge, addressing of issues, nor for their equitable participation in the KHS electoral process.
After receipt of notification of the appeal and a copy of the letter of appeal, Ms. Hall provided this office with a response to the issues raised in the appeal. Elaborating on the Cabinet's position, she advised in relevant part:
. . . Under the KHS charter as set forth in KRS 171.311, all American citizens, partnerships, corporations, or associations who share the purposes of the KHS in maintaining and preserving the history of the Commonwealth, may become active members upon payment of annual dues. A private citizen may join this organization as a hobby or even for philanthropic reasons, and such private citizen may not wish for the public at large to know his of her identity. . . .
. . . Opening this database of private members and their personal identifying information opens the information to all and invites unwarranted attention and unwarranted intrusion. In applying the balancing test as set forth in Lexington-Fayette Urban County Government v. Lexington Herald-Leader, 941 S.W.2d 469 (Ky. 1997), the public's right to know the name and personal information of private citizens who join a society because of their personal interest in preserving the history of the Commonwealth, does not outweigh the privacy interests of these individual KHS members. This request does not involve the expenditure of money by the government, but rather it involves the intake of money from private individuals to support a corporate society for preservation of history. Learning the names of the private citizens who are KHS members does not further any public understanding of the operations of the KHS.
We are asked to determine whether the KHS violated the Open Records Act in denying Mr. James' request for a copy of the KHS membership database and contact information, including the name, address, telephone, and email for all presiding officers and all its members. For the reasons that follow, we only partially affirm the KHS's denial of Mr. James' request, under authority of KRS 61.878(1)(a).
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection, are those records described in KRS 61.878(1)(a) as, "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
The courts have developed a two part analysis for determining the propriety of a agency's invocation of KRS 61.878(1)(a). In Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1995), the Court of Appeals adopted the test first set forth by the Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992):
[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. Id. at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
In this case, Mr. James requested a copy of the KHS membership database and contact information, including the name, home address, telephone number, and email address for all presiding officers and all its members. We address first the denial of disclosure of the names of all KHS members. This office has previously recognized that a person's name is personal but it is the least private thing about him. See 02-ORD-159, citing OAG 82-234.
Recognizing that a person's name is information in which a person has a cognizable, but limited, privacy interest, we proceed to a determination whether disclosure of this information constitutes a clearly unwarranted invasion of personal privacy. This determination turns on whether the privacy interests implicated are superior to the public interest in disclosure. 96-ORD-123.
This case is somewhat similar to, but distinguishable from, prior decisions of this office and the courts that involved donations/contributions by private citizens to public institutions. These decisions upheld the nondisclosure of the names of private donors on the basis that their privacy interests outweigh the public's interest in disclosure records relating to donations. See , for example, 05-ORD-104 (affirmed University of Louisville's denial of disclosure of that portion of request for records that identity of donors to the athletic department); 04-ORD-066 (affirmed City of Hiseville's denial of request to portion of records that identified the donor/ contributors by name that contributed to the Hiseville Municipal Cemetery - Cemetery Caretaker Committee); and University of Louisville Foundation, Inc. v. Cape Publication, Inc. d/b/a/ The Courier-Journal , 2003-CA-002040-MR and 2003-CA-002049-MR. 1 (Court of Appeals held that University properly denied access to all donor records, including the names of the donors that contributed to the University of Louisville Foundation). However, because we conclude that the facts before us are factually distinguishable from those in the authorities cited above, we find they are not controlling authority on the issues presented in the instant appeal.
In the donor decisions, the private donors donated money to support the public agencies, but took no active part in the operation of the public agencies and had no official authority to participate. Here, we have private citizens paying annual dues to become active members in a statutorily created society whose purpose is to maintain and preserve the history of the Commonwealth. The KHS has nine different categories of membership, with prices ranging from $ 35 to $ 1,000. Each member, as an active member in good standing, "shall have the right to vote in person or by proxy, hold office, and otherwise take part in the proceedings of the society." KRS 171.311, Section II. Membership entitles a member to be eligible to serve on the executive committee. KRS 171.311, Section IV; to attend meetings; and upon the request of twenty members of the KHS, the director may call a special meeting of the society. KRS 171.311, Section VII; twenty-five members shall constitute a quorum for the transaction of any meeting of the society. KRS 171.311, Section VIII; Nominations to membership on the executive committee and to offices of president, first vice president, second vice president, and third vice president shall be made by a nominating committee or by any member present at the regular annual meeting . KRS 171.311, Section XII (Emphasis added); The society "charter may be amended by a two-thirds (2/3) vote of the members present and voting at any regular meeting or at any special meeting of the society called for the purpose, provided that written notice containing the substance of the proposed amendments shall have been mailed to members not less that thirty days (30) days in advance of such meeting and the same approved as an amendment by the first General Assembly, meeting after the action of the society." (KRS 171.311, Section XIII).
Thus, the members not only pay annual dues to the KHS, but are entitled to certain statutory rights to participate in the functioning of the agency, i.e ., voting, serving on committees, comprising part of quorums, calling special meetings, and amending the society charter. Under these circumstances, we find that the privacy interests of the members in disclosure of their names are minimal and outweighed by the public's right to know how the KHS and its membership is functioning and conducting its statutory purpose in maintenance and preservation of the history of the Commonwealth. In support of this finding for disclosure of the names, we note that one of the benefits included in membership categories $ 100; $ 250; $ 500; and $ 1,000, is member recognition in the KHS Annual Report. http://history.ky.gov/Investing/membership . Accordingly, we conclude the KHS improperly denied access to records that disclose the names of its members.
However, in this case, we continue to ascribe to the view that disclosure of the members' home address, email address, and phone number constitutes a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a). At page 6 of 98-ORD-100, addressing this type of information, we observed:
Kentucky's courts have recognized that these items of information "are generally accepted by society as details in which an individual has at least some expectation of privacy. " Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828 (1994)]. While telephone numbers and home addresses are often available through telephone directories and voter registration lists, the courts have nevertheless declared that "this information is no less private." Id . The question is not one of "total non-disclosure, but . . . an individual's interest in selective disclosure. " Id . The courts have therefore left little doubt that they consider the telephone numbers and home addresses of private citizens "information of a personal nature." Id .
Disclosure of member information, such as the home addresses, telephone numbers and e-mail addresses of the members would do little to further the citizens' right to know what KHS is doing and would not in any real way subject agency action to public scrutiny. Accordingly, we conclude the Cabinet acted consistently with the Open Records Act in denying access to this information under KRS 61.878(1)(a).
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 This case is a nonfinal and unpublished opinion of the Kentucky Court of Appeals that is currently pending before the Kentucky Supreme Court on a granted motion for discretionary review.