Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Education Professional Standards Board properly relied on KRS 61.878(1)(a) in partially denying inmate Gregory Valentine's July 9, 2007, 1 request for records relating to his victim, a teacher 2 certified by the Board. These records were identified as her:
- 02500 Teacher Certificate Folder
- 03263 Certification Card
- 03265 Beginning Teacher Internship Program Records
- 03266 Florida Performance Measurement System
- 04753 Teacher Education Portfolio File
- 05000 Legal case files
For the reasons that follow, we affirm EPSB's partial denial of Mr. Valentine's request.
By letter dated July 16, 2007, EPSB Records Custodian Marcia Puckett acknowledged Mr. Valentine's request, indicating that EPSB was searching for responsive records, and would notify him of the copying costs when its search was concluded. 3 On July 23, 2007, Mr. Valentine initiated this appeal from what he characterized as EPSB's "refusal . . . to respond to [his] open records request."
In supplemental correspondence directed to this office following commencement of this appeal, EPSB amplified on its position. On behalf of EPSB, Director of Legal Services Alicia A. Sneed described the agency's organizational history that necessitated the search undertaken by Ms. Puckett to ensure that all responsive records were located and the consequent delay in the final disposition of Mr. Valentine's request. Ms. Sneed explained that because Mr. Valentine is an inmate, EPSB notified 4 the teacher that he had requested records relating to her. The teacher then advised EPSB that she was the victim of the sexual assault for which Mr. Valentine was incarcerated and immediately obtained an Order of Protection from the Jefferson Circuit Court restraining him, inter alia, from "gather[ing] or attempt[ing] to gather any information regarding [the teacher's] address, employment, or personal data." On August 13, the teacher provided EPSB with a copy of the Order of Protection.
On August 15, EPSB notified Mr. Valentine of receipt of a copy of the Order of Protection, advising him that the agency would treat his open records request as withdrawn unless he personally notified the agency that he wished to pursue his request. In spite of the fact that it received no communication from Mr. Valentine, EPSB proceeded with its records search, locating certain responsive records in the teacher's certification file. 5 Pursuant to KRS 61.878(1)(a), (k), and (l), and following receipt of a written request from the teacher that her "married name be kept confidential due to the fact that [Mr. Valentine] is unaware of it," 6 EPSB redacted the teacher's social security number, current addresses, test scores, transcripts, and current last name from these records. In support of its partial denial of Mr. Valentine's request, EPSB cited Cape Publications v. City of Louisville, 147 S.W.3d 731 (Ky. App. 2003) for the proposition that in balancing the public's interest in disclosure of personal information about the victims of sex crimes against the victims' privacy interests, the privacy interests implicated by disclosure were superior. It was EPSB's position that:
[The teacher's] request for privacy regarding her records outweighs Valentine's right to obtain government records; furthermore, the request [for privacy] is narrowly tailored enough that Valentine will still be able to obtain records, if he chooses to disregard the protective order, and fulfill any purpose including simple curiosity he might have . . . .
In sum, it was EPSB's position that it did not "intend to deny Valentine's request even with the Order of Protection in place," but that to honor his request might place him in contempt of court. 7
We find no error, other than the procedural error noted above, in EPSB's partial denial of Mr. Valentine's request. In our view, KRS 61.878(1)(a) clearly authorizes nondisclosure of those portions of the responsive records withheld, including the teacher's social security number, current addresses, test scores, transcripts, and current last name.
KRS 61.878(1)(a) excludes from the application of the Open Records Act, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " In 1992 the Kentucky Supreme Court established a standard by which to judge the propriety of a public agency's invocation of this exception. Recognizing that the Open Records Act "exhibits a general bias favoring disclosure, " the Court held that "there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests." Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327, 328 (Ky. 1992). The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory functions and individual privacy interests. Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Id. at 328.
In Zink v Commonwealth of Kentucky, 902 S.W.2d 825, 828 (Ky. App. 1994), the Kentucky Court of Appeals elaborated on this "mode of decision":
[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. [Board of Examiners] at 327.
The court emphasized that the only relevant public interest to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act which is "to further the citizens' right to know what their government is doing and . . . subject agency action to public scrutiny." Zink at 828.
In 02-ORD-36, this office determined that the privacy interests of the victims of the sexual offenses identified in Chapter 510 of the Kentucky Revised Statutes, 8 in avoiding public exposure through the release of their names and personal identifiers outweighed the public's interest in monitoring agency conduct. Based on "a developing body of federal and state case law [and a] perhaps long-overdue recognition of the singularly traumatic consequences of crimes of sexual violence," 02-ORD-36, p. 10, we affirmed a law enforcement agency's denial of that portion of a request for incident reports that revealed the victim's name and other personal identifiers such as home address. As EPSB correctly notes, our decision was affirmed by the Kentucky Court of Appeals in Cape Publications v. City of Louisville, 147 S.W.3d 731 (Ky. App. 2003). Indeed, the court expressly adopted the Attorney General's analysis:
[T]he victims of these crimes share a substantial privacy interest in the nondisclosure of their identities . . . [P]ostulated on the victims' need to avoid public exposure as they cope with the singularly traumatic physical and psychological consequences of the crimes perpetrated against them, crimes that have been characterized as the 'ultimate violation of self.' [citing] Coker v. Georgia, 433 U.S. 584, 597 [97 S. Ct. 2861, 53 L. Ed. 2d 982] (1977) cited in Justice White's dissent in Florida Star v. B.J.F., 491 U.S. 524, 542-43 [109 S. Ct. 2603, 105 L. Ed. 2d 443] (1989).
City of Louisville at 735, 736. This, coupled with the victim's written request that her current last name and other personal identifiers, and the Order of Protection she immediately obtained from the court upon notification that Mr. Valentine had requested records relating to her, imports a strongly substantial privacy interest.
Against this privacy interest we weigh the public's interest in disclosure. As noted, the only relevant public interest to be considered is the extent to which disclosure would "further the citizens' right to know what their government is doing and . . . subject agency action to public scrutiny." Zink at 828. Mr. Valentine's request was directed to EPSB, the agency statutorily charged with regulating the teaching profession (KRS 161.028) and certifying Kentucky's public school teachers. It is apparent from those portions of the teacher's certification file that have been disclosed to Mr. Valentine that EPSB has faithfully performed this duty. It is equally apparent that those portions of her file that were withheld touch upon the personal features of her private life, or are otherwise widely recognized as items of information that enjoy protection under the privacy exception to the Open Records Act. 9 See, e.g., OAG 78-382; OAG 91-185; 92-ORD-1238; 96-ORD-45; 99-ORD-113; 06-ORD-145 (holding that the Attorney General "has long recognized a significant privacy interest in transcripts, GPA, and test scores that is superior to any public interest in disclosure previously articulated"). 10 Here, as in Board of Examiners, above at 328, EPSB has "effectually promoted the public interest in regulation [through the records already disclosed], and there is a countervailing public interest in personal privacy, here strongly substantiated . . . ." Accordingly, we find no error in EPSB's partial denial of Mr. Valentine's request insofar as disclosure of the information withheld would, on the facts presented, constitute a clearly unwarranted invasion of personal privacy.
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 A handwritten notation on Mr. Valentine's request indicates that it was mailed on July 10, 2007. The request reached EPSB on July 12, 2007.
2 The teacher whose records Mr. Valentine requested is identified by name, date of birth, and social security number in his request. We omit her name, as well as these highly sensitive personal identifiers, in deference to her privacy interests.
3 EPSB concedes that this response was procedurally deficient insofar as it did not contain a detailed explanation of the cause for delay and a statement of the earliest date on which the records would be available as required by KRS 61.872(5). Accordingly, we will not belabor this issue.
4 Notification to an individual affected by disclosure of public records is clearly contemplated by the Open Records Act as construed in Beckham v. Board of Education, 873 S.W.2d 575 (Ky. 1994). EPSB's actions in this regard were entirely consistent with the Act.
5 EPSB also determined that records series 03263, 03266, and 04753 were closed series, and that the teacher did not have any legal case files (05000), beginning teacher internship program records (03265), or a teacher portfolio file (04998).
6 In her written request, the teacher expressed concern about Mr. Valentine's upcoming parole hearing and potential danger to her in the workplace or at home should he obtain this information.
7 By letter dated September 6, 2007, a copy of which was mailed to this office, Mr. Valentine notified EPSB that he did not wish to withdraw his request in its entirety, but agreed to the nondisclosure of those portions of the teacher's records "concerning her employment (but not any portions concerning her former employment) and any other information constituting 'personal data.'" On September 12, EPSB transmitted the nonexempt records to Mr. Valentine, reiterating that it had redacted the teacher's social security number, current addresses, test scores, transcripts, and last name from the teaching certificate issued in May 2007. EPSB reminded Mr. Valentine that "personal data," as that term appears in the Order of Protection, is a "broad term," and that EPSB was uncertain if his receipt of the records constituted a violation of the Order. EPSB took the additional precaution of discussing these concerns with Mr. Valentine's attorneys who advised the agency that he was "aware of the potential consequences of receiving the . . . documentation and that [he] still want[ed] the records."
8 This includes the offense perpetrated by Mr. Valentine on the teacher.
9 The only information routinely released by public agencies, but here withheld, was the teacher's current last name and workplace address. To the extent that nondisclosure of this information creates additional impediments to any attempt by Mr. Valentine to further victimize her and does not directly advance the public's right to know, we find that EPSB properly applied the comparative weighing of antagonistic interests analysis in denying this portion of his request.
10 Because we find that KRS 61.878(1)(a) authorizes nondisclosure of test scores and transcripts, we do not address EPSB's denial of this information based on KRS 61.878(1)(k) and (l).