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 Scott County Board of Education violated the Kentucky Open Records Act in partially denying the request of Dorothia L. Wilson to inspect all policies relating to the "reemployment of substitute teachers" and the employment of retired teachers, "from both within and outside of SCPS, as substitute teachers, " as well as the "names and contact information of the individuals who comprise the current Substitute List." In failing to issue a written response citing the applicable statutory exception(s) and briefly explaining how the exception(s) applies to the records withheld in a timely fashion, the Board violated KRS 61.880(1). With respect to the propriety of the Board's response concerning the availability of the requested policies, this office found the standard practice of the Board improper in 05-ORD-277. Because disclosure of the home addresses, phone numbers, etc. of public employees would constitute a clearly unwarranted invasion of personal privacy, the Board properly relied upon KRS 61.878(1)(a), albeit implicitly, in redacting this "contact information" from the current "Substitute List."
By letter delivered to Dr. Dallas J. Blankenship, Superintendent, Scott County Public Schools, on November 17, 2005, Ms. Wilson requested to inspect the aforementioned policies and list, noting that time was "of the essence." Having received no response, Ms. Wilson initiated this appeal via facsimile on November 29, 2005. Upon receiving notification of Ms. Wilson's appeal from this office, Rocky L. McClintock, Attorney, Scott County Board of Education, responded on behalf of the Board/Superintendent Blankenship. As observed by Mr. McClintock, "Ms. Wilson's request was inadvertently combined in the file with her son's request." According to the Board:
Like her son, Ms. Wilson requested the policies of the board regarding reemployment of substitute teachers, and policies regarding our substitution list. As we communicated to her son, these board policies are available [online], at http://policy.ksba.org/s02/. Additionally, a copy of the board policy is available at the Public Library. The records requested are open to the public on a daily basis. I have also enclosed a copy of the [list of] names of the individuals on the current Substitution list. Without the prior approval of each individual on that list, the contact information is confidential, and not subject to an open records request pursuant to KRS 61.878(1)(k) and KRS 61.878(1)(l). 1
With the exception of procedural deficiencies, the response of the Board is consistent with the Open Records Act.
As a public agency, the Board 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. 2 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. By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time."
Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999). Although the burden on the agency to respond within three working days is not infrequently an onerous one, the only exceptions to this general rule are codified at KRS 61.872(4) and (5), neither of which the Board invoked here. 02-ORD-165, p. 3. See 01-ORD-140, pp. 3-7. Failing to respond in a timely and proper fashion constitutes a violation of KRS 61.880(1).
Noticeably absent from the Board's response is any reference to the applicable state and federal law(s) incorporated into the Open Records Act by virtue of KRS 61.878(1)(k) and (l), upon which the Board relies, as well as the requisite brief explanation of how the law(s) apply. A public agency 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 by KRS 61.882(2)(a). 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 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. By failing to comply with the mandatory terms of KRS 61.880(1), the Board violated the Open Records Act. In responding to future requests, the Board should be mindful of the longstanding principle that procedural requirements of the 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.
Turning to the substantive issues presented, this office conclusively resolved any question as to the propriety of the practice employed by the Board relative to disclosure of the policies at issue in 05-ORD-277, a copy of which is attached hereto and incorporated by reference. Accordingly, the same result follows; having failed to invoke any of the statutory exceptions to the general rule permitting access to public records, the Board must allow Ms. Wilson to inspect any existing records which are responsive to her request for the specified policies, and provide her with copies upon receiving advance payment of the prescribed fee, including postage if appropriate, per KRS 61.874(1) , in order to be in compliance with the Open Records Act. Furnishing a requester with a website address and/or directing him/her to the local public library where the requested records are also available is not a substitute for complying with the mandatory terms of KRS 61.872(1)-(3). In light of this determination, the remaining issue is whether the Board erred in redacting the contact information of the substitute teachers named on the list provided to Ms. Wilson.
As emphasized by the Kentucky Supreme Court, 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 this exclusionary language:
[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, as with any other, the burden of proof rests with the public agency. KRS 61.880(2)(c).
In
Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992), the Kentucky Supreme Court established the standard by which this office must judge the propriety of a public agency's reliance upon KRS 61.878(1)(a) as a basis for denying access to public records. Recognizing the Act "exhibits a general bias favoring disclosure, " the Court formulated a 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. 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 information contained therein 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 of 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 Bd. 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 standard articulated by the Supreme Court in
Kentucky Bd. of Examiners in Zink v. Commonwealth of Kentucky, Ky. App., 925 S.W.2d 825 (1994). In discussing its "mode of decision," the Court of Appeals observed:
[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 Bd. of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
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 a 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, 774-775, 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.
Zink at 828-829 (emphasis added).
Because the information at issue has long been recognized as personal in nature, the question becomes whether disclosure of the information redacted would further a purpose related to the Open Records Act. If not, the privacy interests of those individuals whose identifying information was redacted necessarily outweighs the public interest in disclosure. 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 Bd. of Examiners, supra, at 327, as well as the legislative mandate that "exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," codified at KRS 61.871.
In Zink, the Kentucky Court of Appeals observed that while "the place of one's employment may not arise to a person level, as one generally does not work in secret," other information such as "marital status, number of dependents, wage rate, social security number, home address and telephone number are generally accepted by society as details in which an individual has at least some expectation of privacy. " Id. at 828 (emphasis added). Acknowledging that telephone numbers and home addresses are often available to the public through other sources such as telephone directories and voter registration lists, the Court concluded such information "is no less private simply because that information is available someplace." Id. Relying heavily upon
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), the Court reasoned as follows:
"'There 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." [Citation omitted.] Similarly, many individuals choose to disseminate their home telephone numbers only on a selected basis. We, too, are 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. One of our most time-honored rights is the right to be left alone[.] . . .
See also 02-ORD-183; 97-ORD-176.
Public employees do not surrender their right to privacy in this personal information by virtue of their public employment. Although public employees are accountable to the public with respect to the performance of their duties, public employees are also endowed with the "time-honored right to be left alone" in their private lives. Zink at 829. 3 Accordingly, the Attorney General has consistently affirmed denials by public agencies of requests for personal information concerning public employees such as home address, telephone number, social security number, medical history, and marital status, holding that disclosure would constitute a clearly unwarranted invasion of personal privacy. 97-ORD-66; 94-ORD-91; OAG 91-81; OAG 90-60; OAG 87-37; OAG 79-275. 4 Such matters are unrelated to the performance of public employment; the principles upon which the cited decisions are premised apply with equal force to employees of a school district. OAG 87-77, p. 2. 5
Having confirmed the "contact information" requested is of a personal nature, this office must "proceed to determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved." Zink at 828. As noted, 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. " Id. At its most basic level, "the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Id. at 829. Because Ms. Wilson has not articulated how disclosure of the contact information for the substitute teachers would further the principal purpose for which the Open Records Act was enacted, namely, to foster public oversight of government functions, this office finds that any public interest in disclosure is outweighed by the substantial privacy interests of the substitute teachers. Said another way, the relevant public interest is "nominal at best" as disclosure of the information sought 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. See 98-ORD-138; 97-ORD-176. Accordingly, the Attorney General has traditionally taken the view that disclosure of the home addresses and telephone numbers of public employees "sheds no light on an agency's performance of its public duties"; the instant appeal presents no reason to depart from this view. 98-ORD-138 p. 6. If Ms. Wilson (or any member of the public) 6 wishes to contact or correspond with any of the named substitute teachers, the school district ("work station") in which they are employed should be able to facilitate this process. OAG 87-37, p. 3.
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.
Dorothia L. Wilson101 Flintroy Ct.Georgetown, KY 40324
Dallas J. Blankenship, PhD.Ed.Superintendent, Scott County Schools2168 Frankfort RoadGeorgetown, KY 40324
Rocky McClintock115 S. Hamilton StreetGeorgetown, KY 40324
Footnotes
Footnotes
1 Among those records excluded from the application of KRS 61.780 to KRS 61.884 absent a court order pursuant to KRS 61.878 are:
(1)(k) All public records or information the disclosure of which is prohibited by federal law or regulation; and
(1)(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
3 In contrast, "the address of a person licensed to practice a profession is not a matter of personal privacy which may be withheld from public disclosure under KRS 61.878(1)(a) or any other exemption provided in the Open Records Law, KRS 61.870-61.884." OAG 82-524, p. 1. As explained by the Attorney General:
The purpose for licensing a profession is to protect both the public and the profession by assuring that persons who hold themselves out as qualified to practice the profession meet certain minimum standards of training and qualification. A license is in the nature of a special privilege, entitling the licensee to do something that he would not be entitled to do without the license. [Citations omitted.] A license is, therefore, a public document which must identify the licensee to the public and, we believe, the minimum identification should be the name and address of the licensee. When the only address furnished by the licensee is his home address, it should be made available to the public. If the licensee furnishes the Board a business address or a post office box number, it would be sufficient to give that address to the public instead of the home address.
Id., pp. 1-2. A licensing board may withhold the home address and other "private data" of a licensee pursuant to KRS 61.878(1)(a), assuming a business address is available. OAG 79-275, p. 3. In sum, the crucial factors "are identification and general location of the licensee" ; these factors override the privacy interest of the licensee in his personal life. OAG 82-524, p. 2; OAG 91-202. "The analogy between a licensee and a state employee as to home address breaks down if the licensee does not have a work address on file with the board." 96-ORD-13, p. 3 (citation omitted).
4 Employee evaluations also fall within the parameters of KRS 61.878(1)(a) for the reasons articulated in OAG 89-90, OAG 86-15, OAG 82-204, OAG 80-58, OAG 79-348, and OAG 77-394. Conversely, this office has recognized:
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's resume reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717; OAG 87-37; OAG 91-41; OAG 92-59; 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example, OAG 78-133, OAG 91-20, OAG 92-34, 95-ORD-123, 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records. 94-ORD-108.
97-ORD-66, p. 5.
5 Absent evidence to the contrary, this office assumes that substitute teachers, like full-time teachers, should be treated as public employees for purposes of this analysis.
6 All persons have the same standing to inspect public records; the purpose for requesting access is irrelevant. 02-ORD-183, p. 8; 92-ORD-1136; OAG 91-129; OAG 89-86. If one person [in the absence of a court order] is allowed to inspect a record, all should be allowed to inspect. " OAG 89-86, p. 5.