Opinion
Opinion By: Jack Conway,Attorney General;Laura Crittenden,Assistant Attorney General
Open Records Decision
James A. Dietz appeals the Kenton County Fiscal Court's partial denial of his request for public records associated with, or reflecting the frequency of use of, the key card held by Kenton Family Court Judge Lisa O. Bushelman for entry into the county parking garage during calendar years 2012 and 2013. The fiscal court responded to Mr. Dietz's request by producing a forty-five page parking system activity report from which the identification number assigned to the key card and the time the key card was used to enter and leave the garage had been redacted without explanation. The fiscal court did not redact the dates on which the card had been used.
In subsequent correspondence, Mr. Dietz questioned the fiscal court's omission of statutory authority supporting partial nondisclosure of the records, submitting an amended request "to include not only the calendar days on which the card was used . . . but also the times of day when the key card was used." Clarifying that he had no interest in the identifying card number associated with the key card, Mr. Dietz rejected the fiscal court's presumed reliance on KRS 61.878(1)(a), citing open records decisions issued by the Attorney General affirming the public's right of access to records confirming public employee time and attendance. He maintained:
Kenton County's judges work (and park their cars) in a public place that is known or can be ascertained by any interested party. Knowledge of when a particular holder of a key card has used that card in the past to enter and exit the parking garage in question does not change this fact, or potentially expose the holder to a greater security risk. The time information may, however, indicate to the public whether its judges, who are public servants compensated by public tax dollars, are spending a sufficient amount of time performing their jobs on the days they park their cars in the courthouse garage.
The fiscal court responded that KRS 61.878(1)(a) "was not the basis or statutory authority that necessitated the redaction, " denying Mr. Dietz's amended request based on KRS 61.872(6), as construed in 95-ORD-121, 04-ORD-058, and 10-ORD-147. The fiscal court explained that in the cited open records decisions, the Attorney General affirmed public agency denials of open records requests premised on an "unreasonable burden" within the meaning of KRS 61.872(6) when disclosure of the requested records "would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records or information contained therein." Additionally, the fiscal court emphasized that the ability "to ascertain the exact comings and goings of judges out of a facility that is heavily invested in their security, given the amount of aggrieved and disgruntled individuals produced daily by the Justice Center, would absolutely pose a greater security risk for the public servants in question." The fiscal court argued that by releasing the parking system activity reports with dates on which Judge Bushelman used the key card, but without the key card identification number and times of entry to and exit from the garage, it had effectively promoted the public interest in monitoring the judge's discharge of her duties "without jeopardizing safety and security and without the need to overhaul the system each time" it received a similar request.
Mr. Dietz subsequently initiated this appeal. He distinguished the sensitive information at issue in the open records decisions cited by the fiscal court from the information at issue here and emphasized the absence of the required showing, by clear and convincing evidence, of the necessity of an immediate revision of policy or practice. Acknowledging the risks of "some form of retribution from disgruntled persons" that judges, as well as "police officers, prosecutors, parole officers, parole board members, child support officers, and even opposing legal counsel," face, Mr. Dietz rejected the notion that the risk would be enhanced by disclosure of copies of Judge Bushelman's 2012 and 2013 parking system activity reports that included times of entry and exit. He observed:
[A]ny person wishing to approach a judge in or near the parking lot in question could just as easily presume the judge is likely to arrive in the morning and depart in the evening -- and they would most likely be correct, as judges typically conduct court during customary business hours. This reality would not be altered by knowledge of the specific times of day when the card has been used in the past. In fact, the same "pattern" information concerning a particular judge could be ascertained by anyone who is motivated enough to linger around the garage entrance for a certain period of time. Over the course of a week or two, a person could ascertain when a particular judge typically arrives and departs (and ascertain more current information, as opposed his/her activity in prior years).
In supplemental correspondence directed to this office after Mr. Dietz initiated his appeal, the fiscal court again focused on the unique risks faced by judges. The fiscal court noted the extraordinary measures taken to ensure judges' safety in the parking garage at issue, including "a designated area that is gated off from the rest of the garage and can only be accessed by the judiciary and select staff . . . [and] a private and restricted entrance from the garage to the courthouse that can only be accessed behind the gated parking. " Responding to Mr. Dietz' claim that it failed to establish the necessity of an immediate revision of policy or practice following disclosure of unredacted copies of the 2012 and 2013 parking system activity reports, the fiscal court advised:
Similar to a credit card number, if the fiscal court were to disclose the identification of a key card, it could certainly be subject to misuse, or used to circumvent or violate the law if released to the public . . . . The fiscal court would be forced to constantly re-issue key cards with new identification numbers each time such information was requested and provided, in addition to re-programming access to the secured and gated area.
Of course, as noted, Mr. Dietz has expressly disclaimed any interest in the identification number associated with Judge Bushelman's key card.
As a preliminary matter, the Kenton County Fiscal Court's response to Mr. Dietz's original request for records did not comply with KRS 61.880(1). Pursuant to the statute,
[e]ach public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall 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.
KRS 61.880(1) (emphasis added). By redacting the times of entry and exit from Judge Bushelman's 2012 and 2013 parking system activity reports without citation to the statute authorizing the redaction and an explanation regarding how the statute applies to the information redacted, the fiscal court violated this provision of the Open Records Act. Indeed, the fiscal court acknowledged this violation in its May 1, 2014 response to Mr. Deitz's April 25 amended request. Under these circumstances, no further analysis of the violation is warranted.
Further, the Kenton County Fiscal Court's belated reliance on KRS 61.872(6) was misplaced. KRS 61.872(6) provides that if producing requested public records imposes an "unreasonable burden . . . , the official custodian may refuse to permit inspection of the public records or mail copies thereof." Any refusal to produce records in reliance on the provision must "be sustained by clear and convincing evidence. " Id . In 95-ORD-121 the Attorney General held that a jail could withhold its policy and procedures manual pursuant to KRS 61.872(6). Specifically, this office observed:
Nondisclosure is warranted in the present case to the extent that it protects those portions of the manual containing policies and procedures, which, if revealed, would enable persons to impede the goals for which the policies and procedures were adopted, to wit, the safety and security of a detention facility. In more general terms, and with respect to other public records . . . [for example, records containing the account number of a public official's credit card, or the combination on a government vault or safe] nondisclo-sure is warranted if the records could be used to circumvent or violate the law. If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies. In other words, the provision is expansive enough to authorize judicious use, where warranted, but narrow enough to prevent profligate use, where unwarranted.
Id . Guided by these principles, the Attorney General has affirmed agency denial of access under KRS 61.872(6) on a clear and convincing showing that disclosure of the records in dispute would "necessitate an immediate revision of policy or practice so as to avoid subversive use of the records." See, e.g ., 97-ORD-26 (affirming nondisclosure of portions of Kentucky State Police policy manual to the extent those portions, if revealed, "would enable persons to impede the goals for which the policies and procedures were adopted"); 97-ORD-129 (affirming drug task force's denial of request for that portion of its manual dealing with the use of confidential informants); 99-ORD-83 (affirming Owensboro Police Department's denial of request for its Crime Com computer program relating to formulated investigative strategies aimed at crime reduction in targeted geographic areas of the city); 04-ORD-058 (affirming university's denial of request for videotapes of varsity football team practices because disclosure would necessitate an immediate revision of team's strategy, tactics, and plays); 08-ORD-010 (affirming Kentucky State Police denial of request for video of polygraph examination and portions of polygraph policy that revealed testing techniques, test question construction, testing format, and pre-test components); 10-ORD-147 (affirming agency denial of access to credit card numbers). When, on the other hand, the agency has failed to make a clear and convincing showing that disclosure of records would necessitate a revision of policy or practice, we have rejected agency reliance on the KRS 61.872(6) exemption. See, e.g ., 99-ORD-51 (holding that Revenue Cabinet's reliance on KRS 61.872(6) to justify nondisclosure of Kentucky Revenue Protest and Appeals Guidelines was misplaced); 99-ORD-131 (holding that police department improperly relied on KRS 61.872(6) in denying access to detective's work schedule); 02-ORD-211 (holding that Kentucky State Police improperly withheld records identifying the members of the governor's security detail for preceding years).
As previously noted, the fiscal court denied Mr. Dietz's amended request based on KRS 61.872(6) and the purported necessity of "re-issu[ing] key cards with new identification numbers each time such information was requested and provided, . . . and reprogramming access to the secured and gated area[.]" Again, however,Mr. Dietz has expressly disclaimed any interest in the identification number associated with Judge Bushelman's key card. Accordingly, we find that the fiscal court failed to make a clear and convincing showing that disclosure of the parking system activity reports, including the times of entry and exit, but excluding the key card identification number, would necessitate an immediate revision of policy or practice. As reflected in his amended open records request, Mr. Dietz is amenable to redaction of the identification number associated with the key card. The remaining dispute focuses on the times of Judge Bushelman's entry and exit from the county parking garage in 2012 and 2013, and the fiscal court makes no claim that disclosure of this information would, or could, necessitate a revision of policy or practice. The information relates to past occurrences which cannot now be revised. KRS 61.872(6) is therefore inapplicable to the disputed information.
Although the fiscal court disavowed reliance on KRS 61.878(1)(a), it framed its response chiefly in terms of threats to the judge's safety through disclosure of records reflecting the time of her arrival at and departure from the county parking garage, placing the issue of her privacy interest in personal security before us. The Open Records Act exempts from disclosure "[p]ublic records containing information of a personal nature where" public dissemination "would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(1)(a). Determining whether the statute's privacy exemption applies requires a "case-specific approach," as "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Palmer v. Diggers, 60 S.W.3d 591, 598 (Ky. App. 2001) (quoting Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992)). Specifically, determining whether the exemption applies requires "weighing the antagonistic interests of the public's right to know versus the privacy interest, . . . bear[ing] in mind that, 'The 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.'" Valentine v. Personnel Cabinet, 322 S.W.3d 505, 508 (Ky. App. 2010) (quoting Ky. Bd. of Examiners of Psychologists, 826 S.W.2d at 328). Exemptions to the Open Records Act must be strictly construed, and the agency withholding records bears the burden of proving their exempt status. See KRS 61.882(3)-(4); Palmer, 60 S.W.3d at 597-98.
The majority of open records decisions involving access to records documenting time spent by public servants in public service have been resolved in favor of access. See OAG 84-161; OAG 85-94; OAG 86-55; OAG 91-176; OAG 92-102; 96-ORD-239; 99-ORD-209; 09-ORD-167. Such records, reflecting among other things, "total hours an employee worked [and] start and stop times," verify that the public servant "performed public service on certain hours and days . . . and that he did not perform public service on certain hours and days . . . ." OAG 84-161, p. 1. Accountability thus is established through records confirming public service. Id .
Here, however, the parking system records requested do not necessarily reveal attendance for public service. A judge may be called away from his or her office for a variety of reasons, including judicial meetings, conferences, and training, all of which would fall under the rubric of "public service. " Further, in today's world of cell phones, laptops, and similar technology, a judge may conduct public business from remote locations. Accordingly, records revealing a judge's time of entry to and exit from his or her official parking space and/or garage would not constitute an accurate measure of the judge's time spent in public service. Better measures of a judge's productivity might include time sheets, to the extent the judge keeps such records, number of cases closed, and/or number of orders and opinions issued.
While the records Mr. Dietz requests merely may provide some indication of the time Judge Bushelman has spent in public service in 2012 and 2013, they certainly provide her location at a given place and time during this period. Judges are exposed to threats of retaliation from disgruntled individuals perhaps more frequently than other public servants due to their unique role in government. Thus, the prospect of disclosing records that provide a judge's past location, and, by inference, likely future location, raises grave safety and security concerns. The fact that an individual could, in Mr. Dietz's words, "linger around the garage entrance for a certain period of time" and discover more current information regarding when a particular judge typically arrives and departs is not dispositive of the strength of the privacy interest at issue. See Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994) ("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. "). We note that a person observed lingering around a parking garage might raise suspicion and garner the attention of proper authorities; steps could then be taken to ascertain and neutralize any potential threat posed by the individual. In any event, the hypothetical scenario of an individual observing the garage is far different from requiring a public entity to hand over information that could be used to determine a judge's likely whereabouts at a given time, thereby posing a threat to that judge's safety and security.
In short, under the particular facts and circumstances presented, the public's right to know that Judge Bushelman, a public servant, is properly executing her statutory functions does not outweigh the significant privacy interest Judge Bushelman possesses in her own personal safety and security. Again, the records Mr. Dietz seeks would have minimal value in determining the time Judge Bushelman spent in public service over the last two years. Mr. Dietz's request asks the Kenton County Fiscal Court to turn over records containing information of a personal nature--Judge Bushelman's precise location at specific times during 2012 and 2013--the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy and security. Accordingly, the fiscal court did not violate the Open Records Act by redacting from the parking garage system activity reports the times of Judge Bushelman's entry to and exit from the garage. The exemption contained in KRS 61.878(1)(a) applies to the redacted information.
Either party may appeal this decision 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.