Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Frankfort Plant Board violated the Open Records Act in the disposition of a February 3, 2015, request from Jon Petree of Chelepis & Associates, Inc., for "actual copies of monthly water and sewer bills for the previous twelve (12) months for any consumers/ companies that have an annual sewer bill in excess of $ 100,000," including individualized bills for locations with multiple meters. For the reasons that follow, we find that the Board improperly relied upon KRS 61.878(1)(a) to the extent that any of the withheld records were aggregate bills for multiple-user entities.
On March 18, 2015, Customer Service Monique Gilliam replied on behalf of the Plant Board to Mr. Petree's e-mailed request:
Regarding your request for consumer/ companies with an annual sewer bill in excess of $ 100,000, under the Kentucky Open Records Act, this request cannot be fulfilled. The Kentucky Attorney General in 96-ORD-237 held that the records you seek are exempt from production pursuant to KRS 61.878(1)(a). This opinion noted, billing records of individual customers contain information of a personal nature and the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
On January 25, 2016, this office received an appeal from Greg Trout of Chelepis & Associates, Inc. 1
As accurately quoted by the Plant Board in its March 18 letter, KRS 61.878(1)(a) exempts from public inspection:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]
The Plant Board responded to the appeal on February 1, 2016, by a letter from Hance Price, Staff Attorney and Assistant General Manager. In pertinent part, Mr. Price again cites 96-ORD-237 and states:
Later, in 09-ORD-196, the Kentucky Attorney General refined this rule and explained that information regarding a specific customer, in contrast to aggregate customer data, is personal in nature and exempt from production. ? In the instant case, Mr. Trout, on behalf of Chelepis, seeks information specific to individual customers. Hence, it was proper to withhold the records requested.
The record on appeal does not reflect whether all of the "individual customers" referred to by Mr. Price were residential customers, or whether some were multiple-user entities. This is a crucial distinction to our analysis in 09-ORD-196, in which we quoted 96-ORD-176 for the proposition that customer billing records touch upon private matters to the extent that the information "can be used to infer a particular lifestyle of a residential customer. " In modifying 96-ORD-176 and 96-ORD-237, we drew a distinction in 09-ORD-196 between "a single residential user" and "a customer with multiple unidentified users, " concluding that the latter had no recognizable privacy interest in its billing information, which could not "properly be characterized as personal in nature. " Similarly, in 11-ORD-196, we limited the privacy interest to "specific billing information that would identify residential customers and reveal their personal habits."
By contrast, the Plant Board appears to misapprehend the distinction as being between "information regarding a specific customer" and "aggregate customer data." A large commercial or industrial entity may constitute a "specific customer, " but it is not a "single residential user" and does not have a cognizable privacy interest under our analysis in 09-ORD-196. A copy of that decision is attached hereto and relied upon as the basis of our present decision. To the extent that the Plant Board may have withheld billing records for multiple-user entities, as opposed to records of discrete residential customers, it improperly relied upon 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 proceedings.
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