Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Energy and Environment Cabinet, Division of Conservation violated the Kentucky Open Records Act in partially denying the request of Mike Wynn, reporter for The Winchester Sun, to inspect documents containing the "[n]ames and addresses of all individuals, businesses, farming operations or similar entities in Clark County that have received funding in the last five years from the Kentucky Soil Erosion and Water Quality Cost[-]Share Program," 1 the "[d]ates for when any money was granted under the aforementioned program during the last five years," and the "[a]mounts of money that were granted under the program during the last five years." With the exception of the addresses, which the Division withheld on the basis of KRS 61.878(1)(a) because of unarticulated "privacy concerns," the Division agreed to comply with Mr. Wynn's request; accordingly, our analysis focuses exclusively on whether the Division properly withheld the addresses, which Mr. Wynn believes "are necessary to accurately identify who is receiving funding and how the funding is spent." Because disclosure of the addresses requested is necessary to serve the principal purpose of the Open Records Act on the unique facts presented, this office concludes that the Division's reliance on KRS 61.878(1)(a) was misplaced.
Upon receiving notification of Mr. Wynn's appeal from this office, Stephen A. Coleman, Director, elaborated upon the agency's position, initially observing that in Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994), the Kentucky Supreme Court 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. " Quoting from 06-ORD-081, in which this office applied Zink in finding that disclosure of the "personal identifiers the [agency] withheld 'would do little to further the citizens' right to know what [the agency] is doing and would not in any real way subject [the agency] action to public scrutiny'" on the facts presented, the Division urged this office to uphold its denial of access to addresses here. (Citation omitted). Citing 06-ORD-120 and 09-ORD-027, each of which applied the balancing test of Zink on different facts, the Division also emphasized that in Zink the Court recognized 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. " Id. at 828.
As Mr. Coleman explained:
The Winchester Sun's interest in how Water Quality Cost Share Program money has been spent in Clark County is amply served by [the Division's] disclosure of the amounts granted during the specified five-year period and by the Clark County Conservation District's disclosure of the dates when the money was awarded. As the state agency charged with responsibility for overseeing the Cost Share Program, [the Division] is obligated to protect the privacy of individual recipients, whose farming operations oftentimes are located next to their homes. To disclose their addresses could possibly harm them through harassment or otherwise. Additionally, the address of a recipient of Cost Share Program money is not indicative of how the money is being spent; conversely, the recipient has a real and valid expectation of privacy.
In closing, Mr. Coleman asserted "[t]here is no reason to assume that simply by virtue of applying for and receiving assistance from the Cost Share Program, an individual has implicitly waived his or her expectation of privacy. "
Although the Division was correct in asserting that Zink is the governing law, and the Division also correctly argued that individuals have at least some expectation of privacy with regard to home addresses under KRS 61.878(1)(a), this office must respectfully disagree with its application of Zink on the unique facts presented here. Disclosure of the addresses for the "individuals, businesses, farming operations" and other entities that received funding presumably would "further the citizens' right to know, " insofar as it would enable the public to determine whether the Division properly awarded Program funds only to qualified applicants, in accordance with eligibility and prioritization criteria for participation in the Program outlined in the applicable regulation, 416 KAR 1:010, 2 and ensure that recipients were applying those funds to development and implementation of "best management practices" 3 for the permissible reasons. In other words, disclosure is necessary to serve the principal purpose of the Open Records Act. Neither the dates when the funds were awarded nor the amounts granted will adequately serve this purpose; the location of the farm or tract of land itself is essential for sufficient public scrutiny in this context.
As the Kentucky Supreme Court emphasized, 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 Act in the absence of 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 the exclusionary language contained in KRS 61.878(1), "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 and the need for governmental confidentiality . . . suggest[ing] an absence of legislative intent to create unrestricted access to records. Beckham at 578; 03-ORD-084, p. 4. When denying access to public records pursuant to this exception, as with any other, the public agency has the burden of proof. KRS 61.880(2)(c). 4
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 the 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 the Court observed, 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) 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. However, 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.
More recently, the Court of Appeals reiterated that "bright-line rules permitting or exempting disclosure [of public records] are at odds with controlling precedent." Cape Publications v. City of Louisville, 191 S.W.3d 10, 12 (Ky. App. 2006).
Having recognized a cognizable privacy interest in the requested forms because much of the information contained therein touched upon "the personal features of private lives," the Court in Zink proceeded to a determination of whether an invasion of privacy was warranted by weighing the public interest in disclosure against the privacy interests involved. Id. As 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).
After engaging in a "comparative weighing of antagonistic interests," the Court determined that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying the requester access to personal information contained in the injury report forms submitted by private citizens, including marital status, number of dependents, wage rate, social security number, telephone number, and home address. In so doing, the Court reasoned that the "relevant public interest supporting disclosure in [that] instance [was] nominal at best," and the dissemination of unsolicited information to injured workers might serve the "broad public interest" by educating injured workers through dissemination of unsolicited information regarding their legal rights under the workers' compensation statutes, but "[could not] be said to further the principal purpose of the Open Records Act. " Id. at 829 (emphasis added). Accordingly, the substantial privacy interests of the injured employees in such personal information outweighed the "negligible Open Records Act related public interest in disclosure. " Id. Inasmuch as the relevant public interest is paramount here, and the disclosure of the requested addresses would further the principal purpose of the Act, Zink is distinguishable from the instant appeal.
Although the courts and this office have consistently recognized that the information withheld is of a personal nature, the analysis does not end there; instead, the question becomes whether disclosure of the information redacted would further a purpose related to the Open Records Act. In making this fact specific 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. This office is also mindful that "a public agency cannot adopt a policy of blanket nondisclosure relative to [addresses] or any other piece of information appearing on a public record." 96-ORD-177, p. 2. 5
Although this office is not aware of any prior decision that is directly on point, this office is not without guidance in resolving the issue presented. At issue in 98-ORD-189, for instance, was whether the FIVCO Area Development District properly denied a request for "'copies of lists of Lawrence County residents receiving free taps to a current sewer project to serve the Point section.'" While acknowledging that disclosure of specific incomes would implicate a "strongly substantiated privacy interest, " the Attorney General concluded that disclosure of the requested names was "only minimally invasive (since it only indirectly reveals general income levels)." Id., pp. 5-6. In other words, the privacy interest of persons qualifying for free sewer taps in not having their names disclosed was not deemed significant. Relying upon Zink, this office conversely determined that the interest of the public in disclosure of the names was substantial. Id., p. 6. 6 Because the duty of the Lawrence County Fiscal Court was to authorize free sewer taps to private individuals based on specified income guidelines, and disclosing the identities of those individuals furthered the ability of the public to ensure that duty was being properly discharged, the resulting invasion of personal privacy was outweighed by the competing public interest in monitoring the conduct of the Fiscal Court. In conclusion, the Attorney General noted that his position was consistent with a line of decisions issued by this office addressing the conferral of public benefits on private citizens, including OAG 78-828, OAG 80-288, OAG 89-36, and 96-ORD-29. Id. The record on appeal presents no reason to depart from this approach.
In 97-ORD-170, which involved a denial by the "Housing Authority of Jefferson County" based upon KRS 61.878(1)(a), this office reached the same result. At issue were all "records generated pursuant to inspections" of a specific housing unit occupied by a Section 8 participant for the prior tenancy, which would ""reveal the housekeeping of participants . . . and are of a personal nature'" according to the Authority. Id., p. 1. Applying the Zink balancing test, the Attorney General observed that it was "by no means self-evident that the inspection reports at issue in this appeal contain information of a personal nature." 97-ORD-170, p. 7. In addition, this office disagreed with the Authority's position that housekeeping practices "touch[] upon the most intimate and personal features of private lives." Board of Examiners, supra, at 328; 97-ORD-170, p. 7. Simply put, the privacy interest asserted by the Authority was not persuasively substantiated. To the contrary, the focus of the records at issue was the condition of the premises at the time of inspection rather than just the housekeeping practices of the occupants. 97-ORD-170, p. 7. Inspections are "almost certainly aimed at uncovering damage to the premises, including the removal or destruction of fixtures as well as conditions which might endanger the lives of the occupants, the soundness of its electrical, plumbing, and heating and cooling systems, and its overall integrity." Id. Accordingly, the Attorney General was not convinced that a tenant could reasonably expect such matters to be treated with the strictest confidence. Id., pp. 7-8.
On the other hand, the interest of the public was "strongly substantiated. " Id., p. 8. In support of this position, the Attorney General reasoned:
Pursuant to KRS 80.380, the Housing Authority [was] created to [ensure] that there is no shortage of "safe or sanitary dwelling accommodations . . . available to persons of low income at rentals they can afford[.]" Pursuant to 80.500(2), the Housing Authority is charged with the duty "to prepare, carry out, acquire, lease and operate housing; [and] to provide for the construction, reconstruction, improvement, alteration or repair of any housing project or any part thereof." Disclosure of inspection reports will further the public's right to know that the Authority is properly discharging this duty without compromising a significant privacy interest.
Id., p. 8. 7 Similarly, KRS 146.115 establishes the "'Kentucky Soil Erosion and Water Quality Cost-Share Fund' to be administered by the Soil and Water Conservation Commission[,]" which, as previously indicated, is part of the Division. Subsection (2) empowers the Commission to "promulgate regulations establishing practices eligible for cost-sharing funds, prioritizing applications, and prescribing amounts and limits of cost-sharing" 8 and provides that local conservation districts "shall determine the eligibility of persons to receive the funds allocated to the districts by the commission." Here, the Division cited no authority for the proposition that "[a]s the state agency charged with responsibility for overseeing the Cost Share Program, [it] is obligated to protect the privacy of individual recipients [.]" Also noticeably absent is any indication of how or why disclosure of the addresses "could possibly harm them through harassment or otherwise." Without further explanation, this office is not persuaded that the privacy interests implicated are superior to the significant public interest in monitoring the administration of the Kentucky Soil Erosion and Water Quality Cost-Share Program. Prior decisions further validate our holding.
In OAG 78-828, the Attorney General was asked to determine whether the Louisville-Jefferson County Community Action Agency properly denied a request for records identifying the locations of winterization projects and the materials used by the agency in performing such projects. In relevant part, the Attorney General observed:
We know of no reason why the public may not inspect all of the files of the Community Action Agency. . . . There is no general law protecting the privacy of . . . benefits received from public agencies. On the contrary[,] the public is granted access to such information by the Open Records Law. A receiving of public benefits is not a matter of personal privacy as referred to in KRS 61.878(1)(a).
OAG 78-828, p. 4 (emphasis added). When confronted with the issue of whether the Lexington-Fayette Urban County Housing Authority had properly relied upon KRS 61.878(1)(a) in denying a request for inspection reports on Section 8 housing units, the Attorney General similarly observed:
The privacy exemption of the Open Records Law applies when there is a "clearly unwarranted invasion of personal privacy. " This wording calls for a weighing of an individual's right of privacy against the public's interest in the transaction involved. We believe that the public's interest in the proper administration of this program outweighs any privacy interest.
OAG 80-288, p. 3. Such is the case here. See also 96-ORD-29 ("disclosure of records relating to Community Development Block Grant funds is mandated by the Open Records Act. . . . Where public funds go, the public's interest follows"); OAG 89-36 ("the public is entitled to inspect public records regarding improvement of private property with federal grant monies . . ."). Because the addresses requested are inextricably intertwined with the locations of the farms and tracts of land for which the funds were allocated, as compared to the home addresses of the injured employees in Zink, and their disclosure would therefore serve the principal purpose of the Act, the Division erred in withholding those addresses on the basis of KRS 61.878(1)(a).
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 According to the Division's website, www.conservation.ky.gov, the "1994 Kentucky General Assembly established this financial and technical assistance program" to "assist landowners address existing soil erosion,water quality and other environmental problems associated with their farming or woodland operation." KRS 262.115 provides that funds must be administered "by local conservation districts and the Kentucky Soil and Water Conservation Commission with priority given to animal waste related problems, agricultural district participants and to producers who have their Agriculture Water Quality plans on file with their local conservation districts." Ranking of applications is done "on the state level by the [Commission] at the Kentucky Division of Conservation located in Frankfort."
2 In relevant part, 416 KAR 1:010 provides:
The fund provides cost-share assistance to persons engaged in agricultural and silvicultural production for implementation of best management practices for such purposes as providing cleaner water through the reduction in the loading of sediment, nutrients, and pesticides in Kentucky streams, rivers, and lakes; and reducing the loss of topsoil vital to the sustained production of food and fiber; and preventing surface water and groundwater pollution.
3 Section 1, subsection (19) provides that a "Performance and maintenance agreement" is "a written agreement between an eligible person [person eligible to apply for cost-share assistance] and the [conservation] district in which the eligible person agrees to implement and maintain the best management practices for which cost-share assistance is being awarded. Section 2, "Eligibility of Persons," identifies the conditions that must be met in order to receive assistance, including agreement to "perform and maintain best management practices."
4 Inasmuch as the Division initially failed to offer a brief explanation of how KRS 61.878(1)(a) applied to the information being withheld, it violated KRS 61.880(1) and failed to satisfy its burden of proof under KRS 61.880(2)(c); however, the agency remedied this procedural error on appeal.
5 In 04-ORD-188, this office rejected a public agency's attempt to withhold, as a matter of policy, categories of information from law enforcement records on the basis of KRS 61.878(1)(a), concluding that "a law enforcement agency violates the Open Records Act by engaging in the practice of withholding victims' names, addresses, and other personal identifiers from incident reports, absent a particularized showing of a heightened privacy interest outweighing the public's interest in disclosure. " Id., p. 3 (Emphasis added.) A narrow exception has been recognized for victims of sexual offenses identified in Chapter 510 of the Kentucky Revised Statutes. See 02-ORD-36.
6 More specifically, the Court of Appeals recognized that information regarding an individual's income "is commonly treated circumspectly." Zink, supra, at 829.
7 Because the requester was not interested in learning the identity of the current tenant, this office left for another day the issue of whether disclosing the identities of Section 8 participants would constitute a clearly unwarranted invasion of personal privacy, noting that prior opinions strongly suggest that it would not. Id. See 05-ORD-258.
8 Of particular significance, Section 6 of 416 KAR 1:010 provides that the board of supervisors for each conservation district "shall vote upon eligibility at a meeting conducted in accordance with the Open Meetings Law, KRS 61.805 to 61.850, and record the outcome in the minutes of the board of supervisors for that meeting." Likewise, Section 11, "Reporting and Accounting," requires a district, among other things, to "[a]ssemble case files for each approved application [including the "approved application for allocated funds"], filed by program year and accessible for public inspection. " (Emphasis added.)