15-ORD-226

15-ORD-226

December 30, 2015

In re: Scott Dickens/Louisville Water Company        

Summary: Louisville Water Company did not violate the Open Records Act in not providing cell phone communications on the private personal devices of its employees. Louisville Water Company violated the Open Records Act in withholding bank transactions in their entirety, rather than redacting private information, and in not providing responsive attachments to emails.

Open Records Decision

        The questions presented in this appeal are whether the Louisville Water Company (“LWC”) violated the Open Records Act in withholding cell phone communications, such as calls or text messages, which are located on the personal cell phones of its employees, in withholding bank transactions in their entirety under the personal privacy exemption, and in not providing responsive attachments. We find that LWC did not violate the Open Records Act in not producing cell phone communications on the private devices of its employees. LWC violated the Open Records Act in withholding bank transactions in their entirety rather than redacting private information, and in not providing responsive attachments to emails.

BACKGROUND

        Scott Dickens sent an open records request to LWC by email on May 21, 2015. Dickens requested:

1.       All communications sent, received, or reviewed by James Brammell, Amber Halloran, Ed Chestnut, or David Vogel which refer or relate (either explicitly, implicitly, directly, or indirectly) to Barbara Dickens (whether on Louisville Water Company or personal equipment or devices). These include both hard copy and electronic records.

. . . .

8.       Every email sent or received by Amber Halloran via a Louisville Water Company email account since March 31, 2015.

. . . .

10.       All records of reimbursement to or payment of expenses for either James Brammell or Amber Halloran from January 1, 2014 through the present, including copies of actual invoices, folios, and receipts.

11.       All records of cell phone communications (whether calls or text messages and whether on Louisville Water Company or personal devices). These include both hard copy and electronic records.¹

Dickens submitted another request by email to LWC on May 29, 2015, requesting all open records requests pertaining to Brammell or Halloran from January 2014 to the present, all documents relating to LWC’s responses to those requests, including cell phone communications, and documents referring to LWC’s policies and procedures for responding to open records requests from January 2013 through the present.

        LWC responded to Dickens’ May 21, 2015 request on June 11, 2015.² Regarding request number 1, LWC stated:

Documents on personal devices belonging to these individuals are not within the possession of the Louisville Water Company. . . . In addition, some of the documents requested would be protected from production by the attorney-client privilege and are otherwise exempt from production pursuant to KRS 61.878(j) as they are “preliminary recommendations and preliminary memoranda in which opinions are expressed . . .” Furthermore, some of the documents are exempt from production pursuant to KRS 61.878(a) as they constitute a public record “containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.”

Regarding request number 8, LWC stated, “some of the documents requested would be protected from production by the attorney-client privilege and are otherwise exempt from production pursuant to KRS 61.878(j) as they are ‘preliminary recommendations and preliminary memoranda in which opinions are expressed . . .’” Regarding request number 11, LWC stated that it “is still in the process of compiling this information. We will produce this documentation next week.” On June 19, 2015, LWC sent a follow-up to its response to Dickens’ May 21, 2015 request, in which it reiterated its response to request number 1, and stated for its response to request number 11 that “documents on personal devices belonging to these individuals are not within the possession of the Louisville Water Company.”³

        Dickens initiated this appeal on Oct. 7, 2015. LWC responded to Dickens’ appeal on Oct. 21, 2015, and Dickens replied to LWC’s response on Oct. 26, 2015. On Nov. 25, 2015, this office requested additional information from LWC under KRS 61.880(2)(c). We asked whether responsive records existed that LWC was withholding solely under the personal privacy exemption of KRS 61.878(1)(a), or under the personal privacy exemption in combination with other exemptions, and requested that those documents be produced for in camera review. LWC responded on Dec. 7, 2015, stating:

Please note that the first two pages were withheld based solely on the personal privacy exemption in KRS 61.878(1)(a), and the Louisville Water Company continues to maintain that those documents are subject to that exemption. As stated in 98 ORD 7, “Social security numbers and bank account numbers are examples of information of a personal nature the public the [sic] disclosure of which would constitute an unwarranted invasion of personal privacy. This information may properly be excluded from disclosure under KRS 61.878(1)(a).” . . . The other documents were produced but personal information such as bank account and credit card numbers were redacted from them as outlined in our response to Mr. Dickens.⁴,⁵

ANALYSIS

I.       Cell phone communications

        Dickens requests cell phone records, such as calls or text messages, stored on personal electronic devices. KRS 61.870(2) provides:

“Public record” means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. “Public record” shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.

In order to determine whether a document is a public record, the threshold question is whether it is in the possession of the agency. Cell phone communications, including calls or text messages, made using a private cell phone that is paid for with private funds, are not prepared by or in the possession of a public agency. “A public agency cannot produce . . . records . . . which the agency does not possess.” 11-ORD-069. Cell phone communications, such as calls and text messages, on the private cell phones of its employees are not within the possession of LWC. Accordingly, LWC did not violate the Open Records Act in withholding cell phone communications on the private devices of its employees. This office notes, however, that a document created using public funds stored or otherwise hidden on a private cell phone retains its status as a public record and will still be subject to the Open Records Act. While acknowledging the limitations of the existing legal framework to address communications carried out on private cell phones, this office admonishes public employees against using private cell phones to carry out public work in an attempt to shield such communications from the purview of the Open Records Act.

II.       Attorney-client privilege

        In Dickens’ reply to LWC’s response to his appeal, Dickens states that “LWC’s response is limited to a defense of its redaction of documents based upon the attorney-client privilege. Dickens does not disagree with those redactions.” Since Dickens does not appear to continue to contest withholding or redaction of records based on the attorney-client privilege, we consider this issue as moot. 40 KAR 1:030 § 6.

III.       Personal privacy exception

        Dickens argues that LWC has additionally withheld documents based on the exception in KRS 61.878(1)(a), which exempts from the Open Records Act “public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” After a request for clarification by this office, LWC has indicated that it did withhold two pages of documents based on the personal privacy exception, and provided other documents with redactions. The two pages referenced are an email dated Mar. 31, 2015, from Cindy Brieschke, a budget specialist at LWC, to Halloran and others, and a spreadsheet listing bank activity on Mar. 30, 2015. The other documents provided to this office are reimbursement for travel expenditures, which LWC indicates it has already provided to Dickens. Thus, only the email and the page listing bank activity are at issue.

        KRS 61.878(4) provides that “if any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.” A two-part test is used to determine the application of the personal privacy exception:

First, we must determine whether the information sought is of a personal nature. Second, we must examine whether the public disclosure of this information would constitute a “clearly unwarranted invasion of personal privacy.” We do this by weighing the privacy interests of the persons involved against the public's interest in disclosure.

Cape Publications, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818, 821 (Ky. 2008). LWC cites 98-ORD-7 for the holding that “social security numbers and bank account numbers” are within the personal privacy exemption. In 98-ORD-7, the requester sought “copies of print screens of forty-eight abandoned property accounts that were reported to the Department of the Treasury in 1997.” Although we did find that “social security numbers and bank account numbers are examples of information of a personal nature the public disclosure of which would constitute an unwarranted invasion of personal privacy,” in that same paragraph, we stated that “the print screens contain information which is not exempt from inspection under the Open Records Act. The Department cannot properly invoke KRS 61.878(1)(a) to authorize wholesale nondisclosure of the print screens.” 

        The listing of bank activity does contain bank account numbers, but it additionally lists credits and debits taking place to LWC’s bank accounts on Mar. 30, 2015. Applying the two-part test, the credits and debits of LWC’s bank accounts reflect expenditures of public funds, and are not information of a personal nature. “Amounts paid from public coffers are perhaps of uniquely public concern.‘“ 10-ORD-140. “As far as open records are concerned, it is apparently the policy of the Legislature that wherever public funds go, public interest follows.” 05-ORD-203. Although LWC may redact the specific bank account numbers, the public otherwise has an interest in the expenditures of LWC, and LWC cannot use the presence of bank account numbers to withhold the transaction statements in their entirety. Accordingly, in withholding records relating to bank transactions in their entirety, rather than providing the records with the bank account numbers redacted, LWC violated the Open Records Act.

IV.       Attachments

        Dickens stated in his appeal that “LWC has produced printed copies of documents, including emails, which have attachments, but LWC has failed to produce those attachments.” LWC responded that “Mr. Dickens never identified any documents which were missing attachments. LWC would be happy to provide any attachments that were missing that were not exempt from production.” Dickens replied that “LWC’s attempt to place the burden on Dickens to go through all of the documents it has produced to determine which ones had attachments which LWC failed to produce is improper. LWC has a duty to produce all records which are subject to the Act.” Dickens is correct. An agency “must itself identify and review its responsive records” and “release any that are not exempt.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). The burden is on the agency to identify responsive records and produce them or withhold them based on exemptions, and not the requester, as in Open Records Act cases, “only the agency knows what is in its records.” Id. Accordingly, to the extent LWC did not provide responsive attachments to emails, LWC violated the Open Records Act.

CONCLUSION

        In summary, LWC did not violate the Open Records Act in withholding cell phone communications on the private cell phones of its employees. LWC violated the Open Records Act in withholding bank documents in their entirety rather than redacting bank account numbers and other private information. LWC also violated the Open Records Act in not providing all responsive attachments to emails.

        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 proceedings.

                                                Jack Conway

                                                Attorney General

                                                Benjamin Long

                                                Assistant Attorney General

#402

Distribution:

Scott T. Dickens

Dana L. Collins