Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Gary Mason appeals the Eastern Rockcastle Water Association's denial of his August 19, 2015, request for "a full list of customer names and number of meters of all . . . Association customers. " 1 Mr. Mason also requested that Association customers who "have lost, misplaced, or never received a ballot [to elect Association board members] be allowed to vote in person in the September 2nd election. " The Association promptly responded to Mr. Mason's request by providing him with a written answer to his request for "the number of meters. " 2 The Association denied his request for customer names, explaining:
According to KRS 61.878 (which states that; Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy) Therefor we are prevented from providing you with the requested information. [Sic.]
The Association also responded, in narrative form, to Mr. Mason's request that customers who have no ballot be permitted to vote in the September 2 election. Based on these facts, we find that although the Eastern Rockcastle Water Association was not legally obligated to respond to non-open records related inquiries, including Mr. Mason's question about election procedures, in the context of an open records request, the Association failed to meet its statutorily assigned burden of proving that customer names are shielded from disclosure by KRS 61.878(1)(a), the exception upon which the Association relied but did not expressly cite. 3
The Association was under no open records related legal obligation to respond to Mr. Mason's request that customers without ballots be permitted to vote in the September 2 election of new Association board members. This request was entirely unrelated to his right of access to agency records and associated topics. We therefore decline to review that portion of Mr. Mason's appeal in which he challenges the Association's response to this "request." 4
KRS 61.880(1) establishes requirements for public agency 5 response to an open records request. That statute provides:
Each 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
The Eastern Rockcastle Water Association issued a timely written response to Mr. Mason's request, quoting the language of KRS 61.878(1)(a) but failing to "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[s] withheld. " Mere recitation of the language of the exception relied upon has, in past open records decisions, been deemed insufficient to meet the agency's statutorily assigned burden of proof. 6 See, e.g., 96-ORD-100 (recognizing that mere recitation of the language of KRS 61.872(6) to support denial of request was inadequate); 09-ORD-007 (agency's response was deficient because "it parroted, without citing, the language of the statute upon which it relied."); 11-ORD-076 (agency failed to meet its statutorily assigned burden of proof when it "merely parroted the language of the statutory exception it relied upon"). In support, we cited Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996), in which the Kentucky Court of Appeals held that "[t]he language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." The court criticized "limited and perfunctory response[s]" that do not "even remotely compl[y] with the requirements of the Act . . . ." 926 S.W.2d at 858. Although it was issued within three business days, per the requirement of KRS 61.880(1), the Association's response lacked the "particular and detailed information" contemplated by the court in its analysis of KRS 61.880(1). Accord, Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 82 (Ky. 2013) (recognizing that an agency's denial of open records request must be "detailed enough to permit the [reviewer] to assess its claim and the opposing party to challenge it").
Based on the omission of "particular and detailed information" supporting the Association's denial of Mr. Mason's request, we must conclude that it did not meet its burden of proof in denying Mr. Mason's request for a customer list. 7 The Association did not "include a statement of the specific exception" upon which it relied but quoted the language of the exception. Based on the quoted language, we trust that it intended to rely on KRS 61.878(1)(a). That exception authorizes nondisclosure of "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]" In a seminal opinion construing KRS 61.878(1)(a), the Kentucky Supreme Court established a "comparative weighing of antagonistic interests" mode of decision, in which the weight of the privacy interest is measured against the weight of the public interest in disclosure. The Court recognized that KRS 61.878(1)(a) "contemplates a case-specific approach" and that "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational and can only be determined within a specific context." Kentucky Board of Examiners of Psychologists and Div. of Occupations and Professions, Dept. for Admin. v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327-328 (Ky. 1992). 8 Kentucky's Act, the Supreme Court opined, "exhibits a general bias favoring disclosure. " 826 S.W.2d at 327.
In an early open records opinion, the Attorney General determined that "a person's name is personal but it is the least private thing about him . . . [and] 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, p. 3; 12-ORD-180 (agency failed to provide "specific facts or circumstances to demonstrate that complainant's name" was properly withheld) . In general, this office has assigned little weight to the privacy interest in a name appearing in a public record without associated personal information. Compare 02-ORD-36 (affirming agency's right to redact the names of victims of sexual offenses from incident reports); Cape Publications v. City of Louisville, 147 S.W.3d 731 (Ky. App. 2004). The countervailing open records related public interest in disclosure of customers' names is also difficult to discern. Absent circumstances in the record on appeal suggesting otherwise, neither interest warrants great deference. The customers' privacy interest in the nondisclosure of their names, standing alone, is minimal.
We have located no prior open records decisions in which the Attorney General addressed the public's right of access to records identifying public utilities' customers by name only. In 96-ORD-176 the Attorney General affirmed a municipalities' denial of a request for copies of monthly water and sewer bills. We concluded that release of specific billing information, identifying individual users and their individual water and sewer usage, constituted a clearly unwarranted invasion of personal privacy insofar as the information could be used "to infer a particular lifestyle of a residential customer. " 96-ORD-176, p. 1; compare 96-ORD-237 (departing from this holding when the requested water and sewage usage records related to a company that has entered into an agreement with the municipal utility relating to discharge of chemicals into public sewers) and 09-ORD-196 (modifying these decisions to the extent they could be read to approve nondisclosure of aggregate information contained in the water bill of a multiple user entity). The question before us relates exclusively to Mr. Mason's request for the names of customers only. 9 He did not request the customers' billing records. It is impossible to "infer a particular lifestyle of a residential customer" by inspecting a customer list that contains no associated information. Given the absence of proof of a heightened privacy interest, the fact that the privacy interest and public interest in disclosure are equally weighted, and the recognition that, in such cases, "the balance tips in favor if disclosure, " 10 we conclude that the Eastern Rockcastle Water Association did not meet its burden of proof in denying Mr. Mason's request for its customer list.
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.
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