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 Little Sandy Correctional Complex (LSCC) violated the Open Records Act in denying inmate Roger Shelton's May 1, 2006, request for the home address of a person who had been listed on his visitation list. For the reasons that follow, we conclude that the denial did not constitute a violation of the Act.
By letters dated May 2, 2006, and May 5, 2006, the Records Department, LSCC denied Mr. Shelton's request. The first denial was on the basis that Mr. Shelton had not signed a money authorization for payment for a copy of the record pursuant to KRS 61.874. The second denial was on the basis of KRS 197.025(2), in that the requested record did not contain a specific reference to Mr. Shelton. Shortly thereafter, Mr. Shelton initiated the instant appeal.
After receipt of notification of the appeal, Emily Dennis, Staff Attorney, Justice and Public Safety Cabinet, provided this office, on behalf of LSCC, with a response to the issues raised in the appeal. In her response, Ms. Dennis advised:
In both instances, the LSCC records department correctly denied Mr. Shelton's request for a visitor's address, although the reasons cited for the denial to this request should have been different. The Kentucky Open Records Act allows access to public records. The Act does not require agencies to create records or to provide information. See 95-ORD-48. More importantly, a person's home address is personal information the public disclosure of which constitutes an unwarranted invasion of personal privacy. See KRS 61.878(1)(a). Thus to the extent that Mr. Shelton wanted to know the home address of a visitor, about whom he even admits in his appeal, "I have not been in contact since last time incarcerated," he is not entitled to this information, regardless of whether he has funds to pay for the form on which the person's name and address are listed or whether his name is listed on the form.
Pursuant to 501 KAR 6:020, Corrections Policy & Procedure (CPP) 16.1, II.D.2., a visitor shall complete a visiting information form and forward it to the warden's office or provide the information to the assigned Classification Treatment Officer (CTO) before any visit shall be allowed. While it is the inmate's responsibility to inform the potential visitor of this requirement and to send a form and the warden's address to the potential visitor, an inmate shall not receive a completed visitor information form from a visitor or submit it to a CTO. 1 The Department of Corrections' visiting information form (see attachment 1 to CPP 16.1) contains a wealth of personal information about a visitor that is not subject to re-disclosure, even to the inmate who requests the visitor to be added to his or her approved visiting list. An individual's home address, telephone number, date of birth, social security number, sex and race are all subject to the personal privacy exemption under KRS 61.878(1)(a). This information would not be disclosed to any third party under the Kentucky Open Records Act without authorization by the individual whose information is sought.
We are asked to determine if the LSCC properly relied on KRS 61.878(1)(a) in denying Mr. Shelton's request. Because disclosure of the private citizen's home address "would not in any real way subject agency action to public scrutiny, "
Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 829 (1994), we find that the LSCC properly withheld this information.
KRS 61.878(1)(a) excludes from public inspection:
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 an agency's invocation of this exception. In Zink, at 828, 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.
The Zink court noted that in weighing the public interest in disclosure against the privacy interests involved, "the only relevant public interest to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. " Zink at 828. "The purpose of disclosure, " the court continued, "focuses on the citizens' right to be informed as to what their government is doing." Id. Disclosure of records that do not subject agency action to public scrutiny may not be required where there is a competing privacy interest.
With respect to the threshold inquiry of whether the home address requested constitutes 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. (Emphasis added.)
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.
We find that disclosure of the home address of a private citizen on an inmate's visitor list would do little to further the public's right to know what the LSCC is doing and would not in any real way subject agency action to public scrutiny and, thus conclude that the privacy interest of the individual in her home address outweighs the public interest in disclosure. Accordingly, Little Sandy Correctional Complex properly denied Mr. Shelton's request for the home address of a person who had been listed on his visitation list, under authority of KRS 61.878(1)(a).
Moreover, this office has recognized that the Department of Corrections is vested with broad discretion in matters related to the safety, security, and the operations of its institutions. See KRS 197.025; 06-ORD-078; 94-ORD-40. In a proper exercise of its discretion, the Kentucky Department adopted 501 KAR 6:020, Corrections Policy & Procedure (CPP) 16.1, II.D.2., relating to Inmate Visits, which requires a potential visitor to complete a visiting information form and forward it to the warden's office or provide the information to the assigned Classification Treatment Officer (CTO) before any visit shall be allowed. The form requires the visitor to provide his or her name, address, date of birth, social security number, sex, race, and relationship to the inmate. It specifically directs that an inmate shall not receive a completed visitor information form from a visitor or submit it to a CTO. We are not in a position to second guess the Department or to conclude that its policy of requiring potential inmate visitors to provide personal information and not re-disclosing that information to even the inmate who requests that the visitor be added to the list is an abuse of this discretion.
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.
Roger Shelton, # 100445Little Sandy Correctional ComplexRoute 5, Box 1000Sandy Hook, KY 41171
Rebecca KeetonCustodian of RecordsLittle Sandy Correctional ComplexRoute 5, Box 1000Sandy Hook, KY 41171
Bev HarperOffender Information SupervisorLittle Sandy Correctional ComplexRoute 5, Box 1000Sandy Hook, KY 41171
Emily DennisStaff AttorneyJustice and Public Safety CabinetOffice of Legal Services125 Holmes Street, 2nd FloorFrankfort, KY 40601
Footnotes
Footnotes
1 See attached Exhibit 1: 501 KAR 6:020, Corrections Policy & Procedure (CPP) 16.1.