Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville-Jefferson County Metro Government, Department of Codes and Regulations, a.k.a., Department of Inspections, Permits and Licenses, violated the Kentucky Open Records Act in partially denying Phillip W. McKinley's June 25, 2012, e-mail request for "All information concerning IPL complaints for the 1000 block of Hull Street (40204), including indentity [sic] of complainant(s)" from April 1, 2009 - June 25, 2012, and the "boundaries of each inspector's assigned areas." On July 6, 2012, the Department belatedly advised Mr. McKinley that it "was unable to conduct a search without a specific address for which to search." 1 Mr. McKinley clarified that he was "requesting copies of any and all complaints, including identity of complainant, made on" 1000, 1002, 1004, 1006, 1008, 1010, 1012, 1014, and 1016 Hull Street. The Department promptly disclosed "copies of all responsive records identified" but redacted information "contained in the requested files pertaining to the identity of an individual complainant(s)" pursuant to KRS 61.878(1)(a). The Department asserted that "[a]n individual that reports a potential code violation has a reasonable expectation that their identity will not be disclosed and the individual's privacy interest outweighs any public interest in the disclosure of the identity of the complainant." Asserting that no privacy interest such as that articulated in
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, 826 S.W.2d 324 (Ky. 1992) exists here, nor has the Department "attempt[ed] to establish one," Mr. McKinley initiated this appeal. Based upon the following, this office finds that "unless the Department can make a particularized showing that individual complainants' identities were properly withheld, as for example where the complainant requested anonymity or expressed specific fear of retaliation by the individual against whom the complaint was lodged, its reliance on KRS 61.878(1)(a) to support its partial denial" was misplaced. 99-ORD-193, p. 1; 07-ORD-199.
Upon receiving notification of Mr. McKinley's appeal from this office, Brianda A. Rojas, Assistant Jefferson County Attorney, elaborated upon the Department's position "that the release of complainants [sic] identity as requested by Mr. McKinley would constitute an unwarranted invasion of the reporting parties['] privacy" under KRS 61.878(1)(a) . Quoting the language of the exception, the Department argued:
A citizen when reporting a possible regulatory or code violation has expectation that the public agency will perform an investigation or inquiry as to his/her concern. The citizen also has a reasonable expectation that his/her identity will remain confidential and not be released by the public agency to a person who might have reason to resent the communication made to the public agency. Disclosure of the name[s] of individuals that report violations does not provide the public with any information as to the actions of the public agency and could possibly subject the complainant to harassment or retaliation. The individual(s) reporting possible regulatory violations to IPL have a privacy interest in their identities not being released to the public.
The Department cited OAG 84-315, which predated Kentucky Board of Examiners and its progeny as well as decisions by this office following same, including 99-ORD-193, in further support of its argument.
Refuting Mr. McKinley's assertion that Kentucky Board of Examiners , above , is not controlling here, the Department maintained that "disclosure is warranted where there is a public interest related to the actions of public servants in the information requested." Here, the agency continued, "Mr. McKinley seeks to discover the names ( i.e. identities) of the individuals whom have filed complaints with IPL against his six-foot privacy fence." According to the Department, his request is not for the purpose of "understanding or informing himself as to what the government agency is doing or to inspect what and how the public servants are performing their functions, rather his interests are rooted in a personal interest in obtaining private information related to private citizens for a private purpose." Quoting
Zink v. Commonwealth, 902 S.W.2d 825 (Ky. App. 1994)("the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the [principal] purpose of the Open Records Act . . . [by] reveal[ing] whether the public servants are indeed serving the public . . . ."), the Department reiterated that Mr. McKinley's request "is centered on the [sic] obtaining the identity of the individual(s) reporting a complaint to IPL" which is not "relevant in determining whether public employees are performing their duties."
In resolving the question presented, our analysis must be guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," as well as the judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. " Kentucky Board of Examiners at 327. As the Kentucky Supreme Court has 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, 873 S.W.2d, 575, 577 (Ky. 1994), citing KRS 61.871. Despite this "manifest intention to enact a disclosure statute," the General Assembly has mandated that certain records are not open for 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).
In Kentucky Board of Examiners , above , the Kentucky Supreme Court established the standard by which this office must determine whether a public agency has properly relied on 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. The determination of whether a public agency has 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.
As indicated, 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 Board of Examiners 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 of Kentucky Board of Examiners in Zink v. Commonwealth of Kentucky , above . 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 Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
Zink at 828. In determining whether an invasion of personal privacy was "clearly unwarranted" on the facts presented in Zink , the Court emphasized that its "analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request." Id. at 828. Rather, the only relevant public interest considered "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Id. at 829.
Having engaged 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.
More recently, the Court of Appeals emphasized 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, 14 (Ky. App. 2006). In Cape Publications , the Court of Appeals focused on the "case-by-case analysis required by the outstanding law on the Open Records Act, " and, in particular, KRS 61.878(1)(a), in determining that the public's interest in the performance evaluations of two Parks Department employees, one who committed a criminal act "made possible by his position in a public agency, " and the other, that employee's supervisor, outweighed the employees' privacy interests in the work-related content of their evaluations. Id. The Court expressly declined to establish "a bright-line rule permitting disclosure" only in cases where the public employee who was the subject of the evaluation committed a criminal act facilitated by his or her position, observing that the Attorney General had long recognized the superior privacy interests of public employees in their evaluations but rejecting this position in favor of a "case-by-case analysis." 2 Applying this "case-by-case analysis" of the competing interests presented compels a result which is contrary to the Department's apparent policy of withholding names of complainants.
As the Department correctly noted, in OAG 84-315 this office analyzed KRS 61.878(1)(a) in relation to a complainant's identity, reasoning as follows:
[A]lthough in City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982) and Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983), the Court of Appeals stated that complaints spawning an investigation are open once final action is taken, neither opinion discussed the release of the complainant's name. This question apparently was not considered by the Court.
[T]he standard applied to the KRS 61.878(1)(a) privacy exemption is a balancing of interests. Specifically, the balance is between the protection of an individual's private affairs from unnecessary public scrutiny against the preservation of the public's right to governmental information. In this case, the nature of the withheld information (the complainant's name) obviously identifies the complainant and disclosure could possibly harm the complainant through harassment. . . .
It is therefore our opinion that disclosure of the complainant's name would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to governmental information. Release of the complainant' name would effectively chill any reporting of violations to the [public agency] . . . . Release of the complaint with the complainant's name deleted would effectively protect the complainant while allowing the party against whom the complaint is made access to information concerning the alleged violation which resulted in agency action. Pursuant to KRS 61.878(4), it is therefore our opinion that the citizen's complaint should be released (since final action has taken place) but the name of the complainant should be deleted pursuant to KRS 61.878(1)(a).
Id., p. 3.
Nevertheless, the Attorney General has noted, "since the Kentucky Supreme Court issued its decision in Kentucky Board of Examiners [ above ,] this office has taken the position that a public agency cannot adopt a policy of blanket nondisclosure relative to the identity of a complainant , or any other piece of information appearing on a public record." 99-ORD-193, p. 3(emphasis added); see 96-ORD-177 ("the identity of a complainant can be withheld under KRS 61.878(1)(a) where the complainant's privacy interest outweighs the public's interest in disclosure, " but "a public agency cannot adopt a policy of blanket nondisclosure relative to this or any other piece of information appearing on a public record"). 3 Thus, in 94-ORD-133, the Attorney General held:
[A] generic determination that certain categories of information are excluded from the mandatory disclosure provisions of the Open Records Law under [KRS 61.878(1)(a)], or any other exception does not satisfy the requirements of the law. In reaching this decision, we are guided by several pertinent sections of the law, bearing in mind that the "basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest. " KRS 61.871. First of all, KRS 61.880(2) mandates that the burden of proof in sustaining a public agency's denial of an open records request rests with the agency. Second, an agency can properly rely on KRS 61.878(1)(a) in withholding a record only if it can establish that the public's interest in release of the record is outweighed by the individual's privacy interest. Finally, KRS 61.878(4) makes explicit the requirement of particularized justification[.]
Id., p. 8; 96-ORD-177; 99-ORD-193. In the latter decision, this office was asked to determine whether the Franklin County Department of Solid Waste violated the Act in redacting the names and telephone numbers of complainants on the basis of KRS 61.878(1)(a) "to possibly prevent retribution and to prevent inhibiting complainants from reporting violations." The Attorney General noted that the agency did not indicate "whether the particular complainants whose names and telephone numbers were withheld had requested that their identities not be disclosed, or expressed fear of retaliation, or if the decision to withhold" the information was "simply a matter of policy." 99-ORD-193, p. 2. Accordingly, this office found that unless the Department could "substantiate that the privacy interests of those complainants [was] superior to the public's interest in full disclosure, " it was required to release their names and telephone numbers. Id. (Original emphasis.) This reasoning is controlling on the facts presented.
Further support for this conclusion is found in 05-ORD-030, wherein the Attorney General was asked to determine whether the Louisville Metro Department of Public Works violated the Act in redacting the name of the complainant(s) from "records relating to the removal of selected political signs from the dedicated right-of-way along Rudy Lane," and in particular the "Service Request Detail[.]" Similar to 99-ORD-193, and this appeal, the agency observed that any time it received a complaint regarding possible violations, it was "'legitimately concerned that divulging the identity of a complainant to any person could subject a complainant . . . to possible retaliation. '" Id., p. 2. On appeal the Department asserted that the request "'does not focus on the acts or operations of the Department but focuses on the identity of the person who reported the illegally placed signs,'" and inferred that the requester was "'not the least bit interested in departmental actions, policies and procedures'" but was merely seeking the identity of the reporting person "'for the purpose of retribution.'" Id., p. 3. The agency noted the potential chilling effect that disclosure would have on the facts presented, concluding that it was obligated to invoke KRS 61.878(1)(a) to ensure the "confidentiality of a civic-minded citizen who took the time to report unsightly obstruction free right-of ways.'" Id., pp. 3-4. Consistent with governing case law, this office again disagreed that such general considerations justified redaction of the complainants' names in every case.
Applying the Kentucky Board of Examiners standard, as refined in Zink , this office found that it was "the absence of a substantiated privacy interest, in the form of a request for anonymity, and/or circumstances warranting a reasonable expectation of confidentiality, and the presence of a compelling public interest in ascertaining whether the Department's performance of its public duty to remove all political signs obstructing the right-of-way . . . and not just those erected by [the requester] , was influenced by the identity of the complainant," 4 that distinguished 96-ORD-164 (affirming redaction of complainant's identity from records pertaining to complaint regarding waste management practices at a county landfill following his requests for anonymity in light of assurances that all "'substantive factual information on the allegations'" had been disclosed) and its predecessors, including OAG 84-315. 05-ORD-030, p. 5. Significantly, the Attorney General noted that "the record on appeal is devoid of facts or circumstances that would warrant this office in concluding that the complainant requested, or reasonably expected, anonymity in lodging his or her complaint." Id., p. 7 (original emphasis). The record on appeal here is equally lacking in this regard.
In 05-ORD-030 the agency had instead acknowledged how unlikely it was that "'such an inconsequential election' as that to which the political signs related would evoke sufficient passion to precipitate retaliatory acts of any kind, much less retaliatory acts of such a grave character that the complainant would entertain reasonable apprehension, and, accordingly, reasonably expect anonymity. " Id. (Original emphasis.) Although the complainant "might prefer that his or her identity not be revealed," this office continued, "the Open Records Act is abundantly clear in providing that 'free and open examination of public records is in the public interest . . . even though such examination may cause inconvenience or embarrassment to public officials or others.' KRS 61.871." Id. (Original emphasis.) It seems even less probable that a complaint regarding the height of a fence "would evoke sufficient passion" to provoke retaliation and no specific facts have been presented here to suggest otherwise. Given the basic policy of the Act set forth above, the mandate of strict construction also codified at KRS 61.871, the assignment of the burden of proof to the Department per KRS 61.880(2)(c), and the judicial recognition that the Act "exhibits a general bias favoring disclosure, " Kentucky Board of Examiners at 327, this office must conclude, on the facts presented and in the absence of a particularized showing to the contrary , that "the negligible privacy interest implicated by disclosure of the complainant's name," 5 is outweighed by the significant interest of the public in monitoring the agency's performance of its public duties. Id.
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.
Distributed to:
Phillip W. McKinleyDee AllenBrianda A. Rojas
Footnotes
Footnotes
1 Although e-mail is not included among the permissible methods of submitting a request identified at KRS 61.872(2), a public agency can waive this requirement expressly or by a course of conduct, by responding without objection, as the Department apparently did here. 07-ORD-064, p. 2; 07-ORD-222. However, the Department was obligated under KRS 61.880(1) to issue a response within three business days. In failing to respond to Mr. McKinley's June 25 request until eight (8) business days later on July 6, even if only to request clarification, the Department violated the Act from a procedural standpoint. The Department promptly responded to his July 6 e-mail on July 9.
2 In Valentine v. Personnel Cabinet, 322 S.W.3d 505 (Ky. App. 2010), the Court of Appeals applied the Kentucky Board of Examiners standard in determining that disclosure of the personnel file of the prosecuting attorney in Valentine's criminal case would constitute a "clearly unwarranted invasion of personal privacy" and thus upheld the agency's denial on the basis of KRS 61.878(1)(a). Significantly, the Court reaffirmed that a "case-specific approach" is appropriate in determining whether KRS 61.878(1)(a) has been properly invoked. The Court ruled in favor of the Cabinet only after noting that information contained in the requested file was personal in nature and that disclosure would serve no valid public interest, relying largely on the surrounding circumstances and unique facts presented (Valentine had also requested "personnel records for several prosecuting attorneys, multiple judges, and one of his sexual assault victims").
Valentine is facially distinguishable as the request was for a personnel file containing largely personal information, as opposed to merely the name of the individual to whom it related, the disclosure of which served no valid public interest on the specific facts presented there. The Court in Valentine also had evidence suggesting that retaliation and/or harassment was a distinct possibility under those circumstances. As noted, the record in this appeal is devoid of any suggestion, let alone a particularized showing, that any complainant(s) requested anonymity or expressed any fear of retaliation. Thus, Valentine does not alter the analysis or conclusion here.
3 See 04-ORD-188, (expressly rejecting a public agency's policy of withholding categories of information from law enforcement records on the basis of KRS 61.878(1)(a), specifically 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"). A narrow exception has been recognized for victims of sexual offenses identified in Chapter 510 of the Kentucky Revised Statutes. See 02-ORD-36.
4 The Attorney General found unpersuasive "the Department's argument that the complainant was a 'Primary Caller' and therefore subject to a reduced standard of accountability, in addition to its argument that because the reported violation was independently verified by Department employees, his or her complaint was 'redundant' and subject to a reduced standard of accessibility." 05-ORD-030, p. 5. This office further noted that it had rejected a position similar to the first in 94-ORD-20, "concluding that a public agency's 'attempt to categorize complaints as formal statutory complaints and informal telephone complaints [was] analogous to the Board of Medical Licensure's attempt to categorize complaints [in Kentucky Board of Medical Licensure v. Courier-Journal, 663 S.W.2d 953 (Ky. App. 1983)] and no more legally sound.'" 05-ORD-030, pp. 5-6, quoting 94-ORD-20, p. 6. The Attorney General also found "nothing in the Open Records Act to support the view that a record forfeits its public character when public employees independently verify its contents." 05-ORD-030, p. 6.
5 "[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 (i.e., adoption records)." OAG 82-234, at p. 3 (emphasis added); 07-ORD-199. See 98-ORD-123 (upholding the decision to release a witness report, including the name, but with home address and telephone number redacted under KRS 61.878(1)(a)).