Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that although the Louisville Arena Authority properly relied on KRS 61.878(1)(a) to deny Don Sherry access to the social security numbers, dates of birth, marital status, number of dependents, and home addresses, excluding zip codes, of employees of Cleveland Construction and Valley Crest, subcontractors to Mortenson Construction, LAA's construction manager on the Louisville arena project, its reliance on KRS 61.878(1)(a) to deny Mr. Sherry access to the employees' names, home zip codes, gender, race, and pay rate was misplaced. In light of the provisions contained in the construction contracts executed by LAA requiring "the use of local workers, including women and minorities," and requiring payment of prevailing wages, we find that the public's interest in monitoring LAA's enforcement of these terms through disclosure of the race, gender, and zip codes of the employees of the construction manager's subcontractors, as well as their pay rates, is superior to the privacy interests of the employees in this information. The conflicting open records decisions upon which LAA relies are, in our view, factually distinguishable. However, we find that because no open records related public interest in disclosure of the contact information for the members of LAA's Minority Affairs Committee has been suggested, or suggests itself, and because LAA provides a point of contact for the committee members, LAA properly relied on KRS 61.878(1)(a) in denying that portion of Mr. Sherry's request.
On April 14, 2010, Mr. Sherry submitted the first of a series of open records requests to LAA in which he asked for copies of records relating to the Louisville arena project and, in particular, the hiring practices of its construction manager's subcontractors. LAA responded in equal number by denying the existence of some responsive records, disclosing other responsive records, and releasing still other responsive records from which the subcontractor's employees' names, home addresses, phone numbers, dates of birth, social security numbers, marital status, wage rate, and number of dependents had been redacted. LAA relied on KRS 61.878(1)(a) in denying this information, along with contact information for the members of its Minority Affairs Committee, citing
Zink v. Commonwealth, 902 S.W.2d 825 (Ky. App. 1994). In Zink, the Kentucky Court of Appeals affirmed the Department of Workers' Claims' denial of that portion of an open records request that included the home address, phone number, date of birth, social security number, marital status, wage rate, and number of dependents of applicants for workers compensation benefits. In a subsequent response, LAA reaffirmed its position and attached a copy of a May 12, 2010, legal opinion prepared by Frost Brown Todd LLC, the agency's general counsel, in which the firm advised that LAA "will be compliant with the Kentucky Open Records Act if its redacts" the address, phone numbers, social security numbers, race, date of birth, and pay rate of "individual workers that may be present in the requested records[.]" This conclusion was based on Zink and 09-ORD-027, a decision adopting the Zink analysis in the context of a dispute involving access to an investigative report "about the hiring and selection of . . . staff at [Central State] . . . ." LAA did not explain the application of KRS 61.878(1)(a) to the information withheld in the context of a public agency contractually bound to insure the hiring of local workers that include women and minorities, at the prevailing wage, by its construction manager and subcontractors.
In supplemental correspondence, LAA expanded on its position arguing that under the comparative weighing of competing interest analysis established by Kentucky's courts, "the inquiry does not focus on the interest asserted by this specific requester, but instead on the extent to which disclosure of the requested information to the public at large would promote the purposes of the Open Records Act. " (Emphasis in original.) Continuing the agency observed:
The employees of Cleveland Drywall and Valley Crest have an indisputable privacy interest in their personal information. Disclosure would constitute an invasion of that privacy. In addition to the possibility that employees might be exposed to unsolicited and perhaps unwanted membership solicitations by organizations like the particular requestors here, the office must consider the fact that if it holds IKRCC 1 is entitled to this information, anyone else who requests it (including all manner of commercial solicitors) would also be able to access to these employees' personal addresses, telephone numbers, income and other personal information. Zink, 826 S.W.2d at 329. The employees of these companies should not be held to have foregone their rights to privacy over such intensely personal information merely by accepting employment with a private company that subcontracts to another private company that in turn does business with a non-profit corporation created to complete the arena project.
The same holds true for the race and gender information of these individual employees. "[T]his office has long recognized that an individual has at least some expectation of privacy as to his or her race or gender, " and accordingly "disclosure of the individuals' race and gender information would constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a)." 09-ORD-027, pp. 5-6.
Against this significant privacy interest, LAA weighed the "generalized concern with monitoring hiring practices," concluding that "whatever interest existed in public monitoring of the employer's hiring practices did not outweigh the privacy interests of the individual employees. " In closing, the agency noted that aggregate data concerning the race and gender of "those employed in connection with the arena project is publicly available" in reports submitted to LAA's Affirmative Action and Labor Committee, and that "the availability of this aggregate data concerning race and gender participation on the project eliminates any legitimate public need for the employee specific gender and race information that IKRCC has demanded." Respectfully, we disagree.
In
Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006), the Kentucky Court of Appeals properly admonished this office for approving "bright-line rule[s] completely permitting or completely excluding from disclosure" public records or public information contained therein, "[g]iven the case-by-case analysis required by the outstanding law on the Open Records Act. " In the case giving rise to that opinion, we dealt with public employee performance evaluations. While the Attorney General has dealt with personal identifiers of, and information relating to, public and private employees and individuals in other factual contexts, we are aware of no past decisions of this office addressing the public's interest in monitoring a public agency's enforcement of a contractual term obligating its construction manager to hire a local workforce that included minorities and women and to insure payment of the prevailing wage. In our view, the public's interest in insuring that LAA strictly enforces these terms represents anything but "a generalized concern with monitoring hiring practices" to which little weight can be attached. Whatever Mr. Sherry's interest in these records and the information they contain, the public has a substantial interest in insuring that a public agency, responsible for the construction and operation of a multi-million dollar arena partially funded from the public's coffers, is enforcing contractual provisions that redound to the benefit of the community. Prior decisions of this office assessing the public's interest in monitoring hiring practices through records disclosure are, therefore, inapposite. "Bright-line rules permitting or exempting disclosure are at odds with controlling precedent." Cape Publications at 14. We must avoid the temptation to assign the same weight to the public's interest in records and information in the face of widely disparate factual settings.
We do not question for a moment that the personal information at issue in this appeal "is commonly treated circumspectly." Zink at 829. Broad support for this proposition is found in Zink as well as the numerous decisions upon which LAA relies. "Given the case-by-case analysis required by the outstanding law," including Zink, we believe that in weighing the competing interests here the balance tips in favor of disclosure of name, race, gender, zip code, and pay rate. The substantial privacy interest in this information must yield, on the facts before us, to the greater public interest in monitoring the degree to which LAA is enforcing significant terms of its contract with its construction manager. To prevent unnecessary intrusions into the employees' privacy in their homes, we find that LAA may furnish their zip codes only, thereby affording the public the same opportunity to determine that the provisions requiring a local workforce and payment of the prevailing wage are being enforced.
We can perceive no open records related public interest that would be served by disclosure of the personal contact information for members of LAA's Minority Affairs Committee. Disclosure of their home addresses and telephone numbers cannot, in any fashion, advance the public's right to know how LAA is discharging its duty to oversee the construction and operation of the arena or the committee members are discharging the duties they are assigned. Thus, no open records related public interest is served by release of their personal contact information. Moreover, the committee members can be contacted through LAA if the need arises. Unlike the workforce employed by LAA's construction manager and its contractor, there is no apparent requirement that the committee members reside locally, or that these appointments are based on race and gender. Disclosure of their personal contact information would constitute a clearly unwarranted invasion of their personal privacy.
We reject LAA's argument that the public availability of aggregate data on race and gender in reports generated for its Affirmative Action and Labor Committee relieves it of its obligation to produce that information as well as the other nonexempt information contained in certified payroll records and any other responsive record sought. The report does not contain all nonexempt information identified in Mr. Sherry's request. Moreover, it is not the record sought, but a record in which the requested information is filtered to the Committee by the entity charged with enforcement of the contract terms. Here, as in all matters relating to access to information, we remind LAA that "the people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know . . . ." 1974 HB 100, Preamble. Mr. Sherry is entitled to inspect and copy certified payroll records from which name, race, gender, zip code, and pay rate have not been redacted.
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.
Don SherryHarold WorkmanEllen BenzingC. Michael Shull, III
Footnotes
Footnotes
1 Mr. Sherry is affiliated with the Indiana/Kentucky Regional Council of Carpenters.