Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky Board of Nursing violated the Open Records Act in the disposition of Suzette Scheuermann's request dated July 21, 2014, for the e-mail addresses of all of the Board's licensees. For the reasons stated below, we find no violation of the Act.
Dr. Scheuermann's July 21 request stated, in pertinent part, as follows:
I would like to request the email list of our commonwealth's nursing licensees to share a newsletter about the board and nursing issues. I have not been able to find anything in our regulations that prevent [ sic ] the email list from being distributed and I would like to have it for a professional CE related purpose. I will not be selling it to other organizations. The subscribers will have the opportunity to opt out of the nursing newsletter should they desire.
This request was submitted via e-mail, which was evidently accepted by the Board of Nursing, since no objection has been made to the submission of a request in this manner. On July 22, 2014, the Board's General Counsel, Nathan Goldman, replied:
Supplying an email address to the Board is not required, but requested. We do not have an email address for every licensee. Further, licensees are advised that if they supply an email address, it will not be released to third parties. Consequently, the licensee that chooses to supply an email address does so with the expectation of privacy. Otherwise, the licensee may not supply the email address.
Based on this analysis, your request is denied pursuant to KRS 61.878(1)(a) as information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
Dr. Scheuermann initiated this appeal on August 21, 2014, stating that her purpose in requesting the e-mail addresses is to send an electronic newsletter to all licensed nurses that would provide "explicit details on the activities of the Kentucky Board of Nursing and their meetings." (Emphasis omitted.) She argues that her newsletter would "operationalize the 'right to know' by sharing the details of the KBN meetings with all licensees immediately upon the KBN meeting concluding each month." Therefore, she believes that her purpose is harmonious with the intent underlying the Open Records Act and the Board's denial of her request is "preventing [her] from sharing the details of the KBN meetings with licensees. "
KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny, " while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency. Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. at 327-28.
The public interest in open records has been analyzed as follows by the Kentucky Court of Appeals:
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 v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). In Zink , the privacy interest of injured workers in their home addresses, telephone numbers, and Social Security numbers was found to outweigh the interest of an attorney seeking the information for marketing purposes where disclosure "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny. " 902 S.W.2d at 829. See also Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 85 (2013) ("any private interest the requester may have in the information is irrelevant").
In this case, Dr. Scheuermann argues that she intends to further the "right to know" what the Board of Nursing is doing, by communicating the details of the Board's meetings directly to licensees. This may be true in the sense that her newsletter would play the role of a media outlet reporting on the events of the Board meetings. The relevant question, however, is whether the information requested by Dr. Scheuermann, the e-mail addresses themselves , would in any significant way subject the Board of Nursing to public scrutiny by shedding light on its activities. On this point, we are compelled to find in the negative.
In 07-ORD-120, this office ruled that the Louisville Metro Department of Neighborhoods properly denied an individual's access to a list of e-mail addresses of all participants in the Department's "Neighborhood Summits." We concluded that "disclosure of the private citizens['] e-mail addresses would do little to further the public's right to know what their government's doing and, thus, ? the privacy interests of the private citizens in their e-mail addresses outweighs the public interest in disclosure. "
We rejected a similar argument to Dr. Scheuermann's in 06-ORD-031, where a person desiring to communicate with all members of the Kentucky Historical Society had argued that denying him access to members' e-mail addresses "disenfranchise[d] KHS members by denying them the information and means with which to exercise their rights and responsibilities as members," including "their ability to be informed of the agency's business." We ruled once again that disclosure of the e-mail addresses and other contact information of the members "would do little to further the citizens' right to know what KHS is doing and would not in any real way subject agency action to public scrutiny. " Accordingly, we upheld the denial. See also 11-ORD-200; 05-ORD-111 (requests for student e-mail lists properly denied under privacy analysis).
Certainly, the intent of the Open Records Act is to facilitate public scrutiny of government activities. Dr. Scheuermann, however, obtains her knowledge of the activities of the Board of Nursing by observing the proceedings at the Board's meetings, as facilitated by the Kentucky Open Meetings Act. Once she is in possession of that information, she is free to communicate it to other citizens in a newsletter or electronic publication, just as any newspaper or other media outlet might do. Yet the private e-mail addresses of licensees would provide her no further meaningful information about the Board's activities. The Open Records Act does not entitle her to a ready-made subscriber list.
We find nothing to distinguish this case from the result in 06-ORD-031. The private e-mail addresses of licensed nurses have no manifest bearing on how the Board of Nursing performs its public duties, and therefore Dr. Scheuermann's request was properly denied under 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.