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 Louisville Metro Department of Neighborhoods violated the Open Records Act in denying Stephen T. Porter's request for access to the following"
1. All names, with e-mail addresses, of all persons or neighborhoods/ business associations and/or the contact persons of those organizations that are registered in your Neighborhood eBulletin Program.
2. All names, with e-mail addresses, of all attendees and participants in the 2005, 2006 and 2007 Neighborhood Summits.
By letter dated April 18, 2007, Paul V. Guagliardo, Assistant County Attorney, denied Mr. Porter's request, advising:
Your request is denied in accordance with the provisions of KRS 61.878(1)(a), which allows for the exemption of "records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
With regard to the matter at hand, the individuals' interest in maintaining their privacy outweighs the public's interest in the information requested.
In his letter of appeal, Mr. Porter asserts that the Metro Government improperly withheld the names and e-mail addresses of individuals and neighborhood/ business associations registered in the Neighborhood eBulletin Program, arguing in relevant part:
It seems that previous Open Records Decisions and court decisions have established that the names of individuals (and, I would think, certainly neighborhood/ business associations are "the least private thing...and should only be withheld when there is a special reason provided by statute or court order. OAG 82-234, 02-ORD-159, 06-ORD-120. The Kentucky Supreme Court has ruled that: "The purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Zink v. Commonwealth of Kentucky, KY App., 902 S.W.2d 825, 828 (1994). That is what is happening in this request. Various neighborhood associations are interested in knowing which other neighborhood groups are receiving information from the local government. We believe the names cannot be withheld.
That leaves us with the e-mail address dilemma. Some previous open records decisions have denied access to e-mail addresses, when requested along with home addresses and telephone numbers. However, Kentucky court cases such as Zink have only spoken to home addresses and telephone numbers. We are asking for a distinction between those more personal items and the very impersonal e-mail address. E-mail addresses seem to be available to all in our society today. Individual e-mail boxes receive more "spam" mail from unknown senders than they do from known persons. E-mail addresses are ubiquitous. They are on every business card, letterhead, advertisement, Yellow Pages listing, etc. No longer can we consider this an inherently personal and private item. Armed with only an e-mail address, no stranger can appear at your door or call your telephone. An e-mail address doesn't even indicate what country a person is in. There is, therefore, no "clearly unwarranted invasion of privacy" as required by KRS 61.878(1)(a). The appearance of a message on a computer screen inbox list can hardly be considered an "invasion" , which seems to invoke the idea of something actually or potentially more physical, harmful or injurious. Even privacy is not "invaded" if something substantial is not discovered or discoverable. An e-mail address hardly seems substantial.
After receipt of notification of the appeal, Mr. Gaugliardo provided this office with a response to the issues raised in the appeal. Elaborating on the Metro Government's initial response, he explained in part:
You should know that all neighborhood associations and business associations are completely private. In most instances, neighborhood associations are informal groups without "headquarters" or offices. They often meet in neighbors' living rooms. The phone numbers and email addresses are usually the private listings of one of the officers.
Mr. Porter is essentially arguing that if a private citizen gives his or her email address to the government, that email address becomes available to the world at large. He correctly observes that the Courts and your office have long held that one's address and phone number do not become public information just because a citizen has chosen to share information with the government. Zink v. Commonwealth, 902 S.W.2d 825 (Ky. App 1994). It is difficult to imagine how email addresses would be entitled to less protection, as your office has previously recognized. 06-ORD-031. Mr. Porter's request that you change your position is ill-advised.
Because if Mr. Porter is entitled to the information, so is every Nigerian scam artist, every diet pill vendor and every Viagra salesman. The fact that users of the net already receive more spam than legitimate messages is a pretty weak rationale to argue that they should unwittingly be exposed to even more.
We are asked to determine if the Metro Government properly relied on KRS 61.878(1)(a) in denying Mr. Porter's request. Because disclosure of the private e-mail addresses "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 Metro Government 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, 328 (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.
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 e-mail addresses requested constitute 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.
This office has previously recognized that e-mail addresses of private citizens are information of a personal nature, under the rational of Zink. In 06-ORD-031, we held that disclosure of the home address, phone number, and email address of private members of the Kentucky Historical Society constituted a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a). In that decision we reasoned:
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).
06-ORD-031 at p. 7. See also 03-ORD-084, page 6, footnote 2, where, also citing Zink, we recognized that information such as e-mail addresses was information "generally accepted by society as details in which an individual has at least some expectation of privacy, " notwithstanding the fact that such information is often publicly available through other sources, and held that Eastern Kentucky University could properly redact e-mail addresses for the application at issue.
We believe that disclosure of the private citizens e-mail addresses would do little to further the public's right to know what their government's doing and, thus, we conclude that the privacy interests of the private citizens in their e-mail addresses outweighs the public interest in disclosure. Accordingly, we find that Louisville Metro properly denied Mr. Porter's request for this information, under authority of KRS 61.878(1)(a).
However, disclosure of the names of the subscribers of the eBulletin would permit the public to observe, at least to some extent, who was receiving the eBulletins, the number of subscribers, and assess how the government was doing in this facet of its Neighborhood program.
The countervailing interest in nondisclosure of the subscribers' names is minimal at best. This office has consistently recognized that although a person's name is personal, it is the least private thing about him or her and should only be withheld when there is a special reason provided by statute or court order, as in the case of adoption records. OAG 82-234. In the instant appeal, the disclosure of the names of the individuals receiving the Neighborhood eBulletins would only be minimally invasive, particularly since the individuals requested Metro Government to send the eBulletins to them. Accordingly, we find that the agency must release the names of the subscribers, but may withhold their email addresses.
In his supplemental response, Mr. Guagliardo addressed Mr. Porter's request for the "names, with e-mail addresses, of all attendees and participants in the 2005, 2006 and 2007 Neighborhood Summits, " advising:
In the matter of the attendees and participants of the neighborhood summits, the 2007 summit has not yet been held so there is no such record. As for the 2005 and 2006 summits, I have been advised that attendees are informed that they may include their names and email addresses for publication in the summit brochure. However, some either do not have email addresses or choose no to disclose them. I am further advised that Mr. Porter paid to attend both the 2005 and 2006 summits and received the brochure listing the names and addresses of attendees. In the event he has misplaced the brochures, the Department of Neighborhoods will send him another copy of each. That should comply with his request # 2 pertaining to email addresses for attendees. To the extent the Department has an email for an attendee who chose not to publicize it, it would be exempt under KRS 61.878(1)(a) as discussed above.
The agency has agreed to make the brochures of the 2005 and 2006 summits listing the names and addresses of attendees available to Mr. Porter. 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 which are the subject of a request is initially denied but subsequently granted, the "propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. If he has not already done so, Mr. Porter should contact the Metro Government and make arrangements to receive these records. The agency also advised that the 2007 summit had not yet been held so there was no such record in existence. Obviously a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so advising the requester of that fact. 99-ORD-150. To the extent attendees to the summits voluntarily included their names and email addresses for publication in the summit brochures, they would be subject to disclosure, otherwise the e-mail addresses would be exempt from disclosure under KRS 61.878(1)(a), as explained above.
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.