Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Butler County Judge/Executive violated the Kentucky Open Records Act in the disposition of Robert Cron's December 7, 2009, request for records relating to the adoption of a dog from the county animal shelter. For the following reasons, we conclude that the Judge/Executive did not violate the Act.
Mr. Cron's request read in part as follows:
I am requesting to view any and all logs, reports, or any other information pertaining to the Animal Control Office/Animal Shelter involvement with a large Bulldog/Mastiff dog. Any reports of how the dog was either disposed of, relocated to, names of those agencies, or parties involved, along with addresses and telephone numbers of all parties involved with the disposition of this animal.
If the animal is alive today, I want to know where it is, and who has it.
Mr. Cron then provided information to help identify when the incidents involving the dog occurred. He additionally requested a copy of a veterinary report that is not part of this appeal.
On December 10, 2009, Butler County Attorney Richard J. Deye responded that the office of the County Judge/Executive had no responsive records in its direct control, but "in the spirit of cooperation" it was providing records obtained from the Butler County Animal Shelter, which was under the control of the fiscal court. Mr. Deye explained:
On the document entitled "shelter information", about two thirds down the page is a section titled "about you". This information concerns the name, address, and contact information of the adoptive home. Pursuant to KRS 61.878(1)(a) we have redacted the contact information for the prospective adoptive home. ? Pursuant to the principles set fourth [ sic ] in Zink vs Commonwealth [citation omitted] the disclosure of the contact information of the prospective adoptee would do little to further the public's right to know what their Government is doing and will not in any real way subject the Butler County Government to public scrutiny. The disclosure of the contact information for the prospective adoptee could subject the prospective adoptee to an unwarranted invasion of privacy.
(Emphasis in original.) The name of the person adopting the dog, Wesley Beckham, was not redacted from the records provided. A form titled "Shelter Information" indicated that Mr. Beckham would be adopting the dog on a trial basis and would bring the animal back in a few weeks for neutering.
Initiating his appeal to the Attorney General on December 19, 2009, Mr. Cron made clear his reasons for doing so:
I became interested in this dog, wanting to know if it had been cared for, if it had been adopted, or had it been euthanized, hence my request for records of this particular dog. ? There were several different stories going around about what happened to the dog [.] Because I do not trust the Butler County Animal Control Officer, I made the Open Records Request to obtain the records of this dog, thereby, perhaps, it would be possible for me to see the Animal, and once I had seen the animal I would know for certain it was safe.
?
? The records, in their entirety, that I have requested do not present an invasion of privacy, rather it is the only way/option I have to verify that this dog was not mistreated, euthanized prematurely, or in any way abused, and that KY Law has not been violated. ?
? I have no interest in obtaining any private personal information, and it is my belief that a person's address is public information, 911, Fire Departments, Phone Books, and other agencies list this information, and it is routinely included in the BCAS reports.
Mr. Deye responded to the appeal on January 6, 2010:
No one is questioning the purity of Mr. Cron's reason or the sincerity of his intentions. At the same time, it is clear that if the contact information is provided to Mr. Cron ? he intends to use it to contact the prospective adoptee and make inquiries about the dog. Mr. Beckham and/or his family is going to be subjected to some type of contact, wanted or unwanted, from someone they don't know, asking questions about an animal adopted from the Butler County Animal Shelter.
At this time, it is important to disclose a history of the Butler County Animal Shelter. Prior to the present administration (January 1, 2007) animals coming to the Butler County Animal Shelter had a very high rate for euthanasia. During the current administration, the County has worked to change that circumstance and at the present time a very large percentage of the animals entering the shelter are adopted with a very small percentage being euthanized. Those animals being euthanized are for the most part sick, injured, or prone to aggressive behavior. It is important to understand that the ability to adopt animals out (as opposed to euthanasia) is attributable in large part to the development, nurturing, and maintenance of contacts through social networking. If a prospective adoptee becomes subject to unsolicited communications from strangers there is a danger that there could be a "chilling effect" upon the adoption process.
We believe that in this instance the controlling case law does not support the claim of an open records violation.
KRS 61.878(1)(a) authorizes public agencies to withhold:
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 we judge the propriety of a public agency's reliance on KRS 61.878(1)(a) as a basis for denying access to public records. At pages 327 and 328 of
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Court articulated the following standard:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute 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. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
The Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity . . . ." Id.
In a subsequent analysis of the privacy exemption, the Court of Appeals refined this standard.
Zink v. Com., Dept. of Workers' Claims, 902 S.W.2d 825 (Ky.App. 1994). At page 828 of that opinion, the court discussed its "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. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
Having recognized a cognizable privacy interest in the records at issue in that case, the court turned to the issue of whether an invasion of privacy was warranted based on a weighing of the public interest in disclosure against the privacy interest involved:
We think the Legislature clearly intended to grant any member of the public as much right to access to 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. ? As stated in Board of Examiners, supra, "[t]he public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of 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. " 826 S.W.2d at 328. At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink, 902 S.W.2d at 828-29. Recognizing the existence of competing interests when KRS 61.878(1)(a) is asserted, this office has stated that "it is incumbent on the agency advocating nondisclosure of records relating to an individual ? to satisfy its burden of proof that the privacy interests of that [individual] are superior to the public's interest in disclosure. " 00-ORD-162, p. 6. We believe the Butler County Judge/Executive has done so in this case, since the facts and contentions essentially mirror those in Zink.
The Zink case involved an individual's request for copies of "Employer's First Report of Injury" forms received by the Department of Workers' Claims, in response to which the Department provided him with "a computer print-out showing the name, date of injury, county of injury, injury code and part of body injured, and days of work missed" for each worker reported injured. 902 S.W.2d at 827. Portions of the records redacted under the privacy exception contained the injured worker's "home address, telephone number, date of birth, social security number, marital status, wage rate, and number of dependents." The court reasoned:
Clearly, much of the information contained in the ? forms touches upon the personal features of private lives. [I]nformation such as marital status, number of dependents, wage rate, social security number, home address and telephone number are generally accepted by society as details in which an individual has at least some expectation of privacy. Appellant points out that much of this same information is contained in other public documents which are made available for public inspection such as police accident reports[.] As has been pointed out, however, when an individual enters on the public way, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent[.] We also realize that telephone numbers and home addresses are often publicly available through sources such as telephone directories and voter registration lists. However, we think this information is no less private simply because that information is available someplace. We deal therefore, not in total non-disclosure, but with an individual's interest in selective disclosure.
Id. at 828 (citations omitted). The court then found that the injured workers' home addresses and telephone numbers, along with the other redacted information, "reveal[ed] little or nothing about an agency's own conduct" and therefore did not "further the principal purpose of the Open Records Act. " Id. at 829.
Against this de minimis public interest the court weighed the private interests of the injured workers in non-disclosure:
Disclosure of the requested information would release to the public the home address and telephone number of each injured employee, information he may fervently wish to remain confidential or only selectively released. The employee would then be subjected to unsolicited mail from appellant and perhaps offensive mail or telephone calls from others. The United States Court of Appeals for the Sixth Circuit when confronted with a FOIA request that would involve the release of home addresses of those with Veterans' Administration guaranteed loans stated that "'there are few things which pertain to an individual in which his privacy has traditionally been more respected than his own home.' (citation omitted). The importance of the right to privacy in one's address is evidenced by the acceptance within society of unlisted telephone numbers, by which subscribers may avoid publication of an address in the public directory, and postal boxes, which permit the receipt of mail without disclosing the location of one's residence. These current manifestations of the ancient maxim that 'a man's home is his castle' (citation omitted) support the ? important privacy interest in the addresses sought." Heights Community Congress v. Veterans Administration, 732 F.2d 526, 529 (6th Cir. 1984), cert. den., 469 U.S. 1034, 105 S. Ct. 506, 83 L. Ed. 2d 398 (1984). Similarly, many individuals choose to disseminate their home telephone numbers only on a selected basis. We, too, are hesitant to denigrate the sanctity of the home, that place in which an individual's privacy has long been steadfastly recognized by our laws and customs.
Id. The court concluded that this privacy interest outweighed the minimal public interest in disclosure of this information. This office has previously recognized the privacy rights of even public employees in their home addresses and telephone numbers and upheld non-disclosure on grounds that the information was irrelevant to the performance of public duties. ( See, e.g., 06-ORD-036, p. 6, and decisions and opinions cited therein). The privacy interest of a non-public employee is of no lesser magnitude.
Here, as in Zink, releasing the name of the person who adopted the dog in question is sufficient to establish the public agency's conduct, inasmuch as the disclosed records show that the dog was adopted rather than euthanized, and adopted by an individual rather than by an agency or business. Therefore, the public interest in disclosure of further personal information about Mr. Beckham is de minimis, since it would not materially advance the purposes of the Act, and the balance tilts in favor of his privacy. To the extent that Mr. Cron is concerned for the welfare of the dog after its adoption, he is interested in the behavior of a private citizen, not a public agency.
Of the prior decisions of this office cited to us by Mr. Cron, the only one finding a violation of the Open Records Act is 09-ORD-156. In that decision, the Attorney General ruled that an individual who had been charged with a crime had a reduced expectation of privacy in records relating to the incident from which the charge arose. 09-ORD-156 is therefore distinguishable from the present appeal in that Mr. Beckham has not been charged with a crime, but has merely adopted a dog. This does not rise to the standard of "enter[ing] on the public way, break[ing] a law, or inflict[ing] a tort on [one's] fellow man" under which the Zink court held that an individual "forfeits his privacy to a certain extent." 902 S.W.2d at 828. We therefore conclude that the Butler County Judge/Executive properly withheld the home address and telephone number of Mr. Beckham.
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.
Robert CronDavid Fields, Butler County Judge/ExecutiveRichard J. Deye, Esq.