Request By:
Ron Clark, City EditorTrent Lovett, Principal
Marshall County High School
416 High School Road
Benton, KY 42025Ruth Etta Buchanan, Superintendent
86 High School Road
Benton, KY 42025Martin Johnson
P.O. Box 450
Benton, KY 42025
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 Marshall County High School violated the Open Records Act in partially denying Paducah Sun City Editor Ron Clark's November 2, 2007, request for "a copy of a letter sent to the Marshall County Public School System on or about October 31 from the Kentucky High School Athletic Association notifying the school system that the Marshall County boys golf team was stripped of its recent first-place state golf championship because one player . . . was ineligible." For the reasons that follow, we find that MCHS failed to meet its statutorily assigned burden of proof in sustaining its decision to redact student names from the letter before releasing it to The Paducah Sun , thereby violating the Open Records Act.
In a response dated November 5, 2007, MCHS Principal Trent Lovett denied The Paducah Sun's request in full, citing KRS 61.878(1)(a) and asserting that the requested letter "contains information of a personal nature related to a student at Marshall County High School, and if disclosed, would constitute a clearly unwarranted invasion of that student's personal privacy. " In addition, Mr. Lovett relied upon KRS 61.878(1)(h), explaining that the requested letter "is part of the record KHSAA compiled in its investigation of an alleged violation of its regulations by Marshall County, and this matter is subject to an appeal under KHSAA's due process procedures."
Shortly thereafter, The Paducah Sun initiated this appeal challenging MCHS's position and noting that "[t]he name of the student is already in the public domain . . . ." In supplemental correspondence directed to this office following commencement of The Paducah Sun's appeal, Mr. Lovett advised this office that the open records dispute "has now been resolved." He indicated that MCHS had provided "a copy of the letter requested, with student names redacted" to Mr. Clark and The Paducah Sun . Respectfully, we do not agree that this matter was resolved by release of a redacted copy of the letter. Because MCHS makes no particularized showing that the student whose name appears in the letter has a significant privacy interest in the nondisclosure of his identity that outweighs the public's right to know, we find that MCHS's reliance on the privacy exception was misplaced. 1 Given the absence of any claim by MCHS that students, other than the student whose identity is already public, are identified in the letter, this is especially true.
KRS 61.878(1)(a) excludes from the mandatory disclosure provisions 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. " From this exclusion, "we 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. " Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 578 (Ky. 1994). The public's right to know, the Kentucky Supreme Court observed in Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., 826 S.W.2d 327, 328 (Ky. 1992), "is premised upon the public's right to expect its agencies properly to execute their statutory functions." "Inspection of records," the Court reasoned, "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." Board of Examiners , above. Echoing this view, in Zink v Commonwealth of Kentucky, 902 S.W.2d 825, 828 (Ky.App. 1994), the Court of Appeals confirmed that "we . . . determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved."
Recognizing that the Open Records Act "exhibits a general bias favoring disclosure, " the Supreme Court has also declared that in assessing the propriety of an agency's invocation of KRS 61.878(1)(a) "there is but one available mode of decision, and that is by a comparative weighing of the antagonist interests." Kentucky Board of Examiners at 327. 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, noting that "[t]he statute contemplates a case-specific approach" and that "the question of whether an invasion of privacy is clearly unwarranted is intrinsically situational, and can only be determined within a specific context." Id ., at 328. Only if the individual's privacy interests are of sufficient weight to overcome the public's interest in insuring that the subject agency is "proper[ly] . . . execut[ing] [its] statutory functions," id ., can that individual be said to possess a substantiated and protected privacy interest.
In an early open records opinion, this office recognized that, in general, "a person's name is personal but it is the least private thing about him . . . . The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order." OAG 82-234, p. 3. Although this opinion predates much of the significant caselaw construing the privacy exception, and our construction of the exception has since been tempered by the recognition that "a bright-line rule completely permitting or completely excluding . . . [records and information] from disclosure is at odds with existing law . . .," 2 we continue to ascribe to the view that an individual's name appearing in a public record is presumptively open absent a showing of a privacy interest of sufficient weight to overcome the public interest in full disclosure. Accord, 02-ORD-159 (names of individuals placed on housing authority's criminal trespass list); 03-ORD-247 (names of persons to whom dog and kennel licenses have been issued); 05-ORD-037 (names of individuals listed as references by applicants for public employment); 05-ORD-081 (names of students residing in one school district but attending school in another school district) . No such showing is made in the instant appeal.
The latter decision is particularly instructive in this regard. In 05-ORD-081, the Perry County Public School District requested records containing, inter alia , the names of students residing in the Perry County School District but attending school in the Hazard Independent School District. Hazard Independent resisted disclosure of the records on the basis of KRS 61.878(1)(a) and KRS 61.878(1)(k) and (l), incorporating 20 U.S.C. § 1232g and KRS 160.700, et seq ., respectively, into the Open Records Act. 3 Fundamental to our determination that disclosure of the students' names was not prohibited by 20 U.S.C. § 1232g and KRS 160.700 was the existence of a Hazard Independent Schools Student Records policy consistent with the requirements of those federal and state laws, and, in particular, the presence of a policy governing student directory information that included student names. "Directory information," we noted at page 7 of 05-ORD-081, "is understood to represent information related to a student not normally considered confidential, 20 U.S.C. § 1232g(b)(1) and KRS 160.700(1)." Because Hazard Independent Schools had taken the steps necessary to approve directory information consisting of, inter alia , student names, we concluded that neither federal nor state law prohibited disclosure and that "the privacy interests implicated [by disclosure of student names] [were] negligible."
Our review of the Marshall County School District's website http://www.marshall.kyschool.us , discloses the existence of a similar student records policy that includes the designation of directory information consisting of, inter alia , student names. (Copy enclosed. ) In addition, we note the existence of a letter from Interim Superintendent Ruth Etta Buchanan to parents and guardians of Marshall County Public School Students on the agency's website advising parents and guardians that the District "would like to include your child's name and/or picture when he/she is involved in certain events and accomplishments . . . in a variety of media . . . when appropriate," and affording parents and guardians the opportunity to "opt out" by sending a letter "to the school principal by August 24, 2007." (Copy enclosed. ) The presence of these policies militates against a determination that student names are considered confidential or otherwise protected from disclosure by KRS 61.878(1)(a). Absent a showing of a significant privacy interest, a student name should not be deleted from a public record. The record on appeal is devoid of any showing whatsoever that the student whose name was redacted from KHSAA's letter "informing the school that it was stripped of its recent first-place boys state golf championship . . ." enjoyed a protected privacy interest. We know that he was declared ineligible, but nothing about the circumstances that prompted that declaration. The Kentucky High School Athletic Association's website, http://www.khsaa.org/handbook identifies a number of factors that are considered in determining a student's eligibility. (Copy enclosed. ) These include a physician's certification of physical fitness (Bylaw 2), age (Bylaw 3), enrollment (Bylaw 4), minimum academic requirements (Bylaw 5), transfer status (Bylaw 6), conduct (Bylaw 7), participation on other teams, post season and all-star sportsmanship (Bylaw 11), and amateur status (Bylaw 12). Although one or more of these factors implicate an arguably protected privacy interest, e.g., a physical condition precluding a physician's certification of fitness or poor academic performance, MCHS does not assert that either of these were the basis for KHSAA's decision to declare the student ineligible. Indeed, MCHS offers no explanation for its invocation of the privacy exception as the basis for redacting the student's name.
In denying access to all or any part of a public record, it is incumbent on a public agency to both cite the exception authorizing nondisclosure and briefly explain how the exception applies to the record withheld. KRS 61.880(1); see also, Edmondson v. Alig, 926 S.W.2d 956, 858 (Ky. App. 1996) requiring public agencies "to provide particular and detailed information in response to a request for documents." Moreover, KRS 61.880(2)(c) assigns the burden of proof in sustaining a denial or partial denial to the public agency issuing that denial or partial denial. Clearly, "a bare assertion relative to the basis for denial . . .does not satisfy the burden of proof. " 00-ORD-10, p. 11, citing 95-ORD-61, p. 2. In its original denial of The Paducah Sun's request, MCHS did little more than offer "a bare assertion relative to the basis for denial." In its supplemental response notifying this office that a copy of the disputed letter would be released to The Paducah Sun with student names redacted, " MCHS provided no additional explanation for its partial denial. Given the minimal intrusion on privacy generally associated with disclosure of a name, and supported by existing Marshall County School District policies, and the absence of a particularized showing that the student whose name appears in the letter has a significant privacy interest in the nondisclosure of his identity, we have no alternative but to conclude that MCHS failed to meet its statutorily assigned burden of proof, and that its partial denial of The Paducah Sun's request constituted a violation of the Open Records Act.
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 Having released a redacted copy of the disputed record to The Paducah Sun , MCHS does not, nor could it logically, pursue its argument that the record is also shielded from disclosure by operation of KRS 61.878(1)(h).
2 Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006).
3 We note that MCHS does not rely on 20 U.S.C. § 1232g or KRS 160.700, et seq ., in withholding the student's name.