Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Jefferson County Public Schools ("JCPS") violated the Kentucky Open Records Act in the disposition of Pat Thurman's May 20, 2013, request for the "entire personnel file" of John B. Flood, Jr., "including any and all documents pertaining to his termination from Jefferson County Public Schools," which were to "include the investigation leading to his termination from JCPS." For the following reasons, we conclude that JCPS did not substantively violate the Act.
On June 3, 2013, JCPS Communications Specialist Ben Jackey replied to Ms. Thurman's request:
Please be advised that without a signed release from Mr. Flood, we can only provide you with limited records. An employee's personnel file contains many documents and is a mixture of material that is subject to inspection and material that may be withheld from inspection pursuant to the Open Records Act.
Enclosed are the documents that are responsive to your request along with an invoice in the amount of $ 2.27?
[P]ursuant to KRS 61.878(1)(a), the employee's personal information such as the home address, social security number, date of birth, telephone number, marital status, and race/gender codes has been redacted from the document since the disclosure of such information would constitute a clearly unwarranted invasion of personal privacy. Such matters are unrelated to the performance of public employment.
Ms. Thurman initiated an appeal to the Attorney General on June 9, 2013.
On June 17, 2013, Mr. Jackey responded to the appeal. He advises that Ms. Thurman had made a narrower request for records on Mr. Flood on May 20, 2013, after which she was advised by telephone that the records were in storage and had to be retrieved from archives, "reviewed, and redacted before being sent." Although Ms. Thurman does not complain that this communication was deficient, we note that KRS 61.872(5) requires that when a public record is in storage, custodian "shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " Since the communication in this case was by telephone, we cannot determine the precise extent to which JCPS complied with this procedure.
In regard to the agency's substantive response on June 3, Mr. Jackey states:
Upon receiving the requested personnel file from archives, this office responded to Ms. Thurman's request on June 3, 2013?
Mr. Flood's personnel file consists of only 15 pages, 14 of which were sent to Ms. Thurman. The one page withheld contained information pertaining to a criminal background check prior to Mr. Flood's hire. While we recognize that the withholding of the criminal background check and the applicable exception was not adequately explained in the response to Ms. Thurman's request, that document is, in fact, exempt from inspection under KRS 17.150(4), which makes records contained in a centralized criminal history database confidential and KRS 61.878(1)(l), which exempts public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly?
The personnel file makes only two references to the end of Mr. Flood's employment, one is a "notification of change" sheet which states that Mr. Flood resigned and the second is a letter of resignation. Those documents ? were provided to Ms. Thurman.
No investigation regarding Mr. Flood exists and we are in possession of no other documents pertaining to Mr. Flood's resignation, circumstantial or otherwise.
We agree that JCPS erred by not making explicit its reliance on KRS 17.150(4) and KRS 61.878(1)(l). Under KRS 61.880(1), an agency denying inspection of a record must "include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " The failure to do so was a procedural violation of KRS 61.880(1).
Substantively, however, Mr. Jackey is correct that a criminal background check made through the centralized criminal history database is confidential. KRS 71.150(4) provides that "[c]entralized criminal history records are not subject to public inspection. " This is incorporated by KRS 61.878(1)(l), which provides that "[p]ublic records the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are excluded from the application of the Open Records Act. We have applied this exclusion to criminal background checks. 06-ORD-136.
With regard to the redactions of personal information made by JCPS, 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.
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. ?
No less intrusive would be the release of the employee's social security number. Those nine digits today represent no less than the keys to an information kingdom as it relates to any given individual. Access to a wealth of data compiled by both government agencies and private enterprises such as credit bureaus is obtainable simply upon presentation of the proper social security number.
Id. The court concluded that this privacy interest outweighed the minimal public interest in disclosure of the types of information at issue. This office has previously recognized, in particular, the privacy rights of 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 and decisions and opinions cited therein). Furthermore, we are unaware of any circumstances under which Mr. Flood would have waived his personal privacy rights.
Here, as in Zink, releasing the additional personal information about Mr. Flood would do nothing to shed light on the public agency's conduct; nor would it relate to the performance of public duties. While Ms. Thurman is evidently interested in the circumstances and events surrounding Mr. Flood's separation from employment at JCPS, there is nothing in the record to indicate that these personal data would be relevant. Therefore, the public interest in disclosure of such information is de minimis, since it would not materially advance the purposes of the Act, and the balance tilts in favor of Mr. Flood's privacy. We thus conclude that JCPS properly withheld the home address, social security number, date of birth, telephone number, marital status and "race/gender codes" of Mr. Flood as a "clearly unwarranted invasion of personal privacy" under KRS 61.878(1)(a).
Accordingly, JCPS did not substantively violate the Open Records Act. JCPS committed a procedural violation of KRS 61.880(1) by failing to explain its withholding of the criminal background check.
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:
Ms. Pat ThurmanMr. Ben Jackey