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 University of Louisville violated the Open Records Act in the disposition of Kate Howard's June 20, 2016, request to inspect certain e-mails. For the reasons stated herein, we find that the University did not timely respond to the request, but permissibly redacted personal telephone numbers and e-mail addresses on the basis of KRS 61.878(1)(a).
On behalf of the Kentucky Center for Investigative Reporting, Ms. Howard requested:
All emails, including those stored or deleted, from April 1 to the date this request is filled, belonging to James Ramsey, Jane Ramsey, Jake Beamer or Kathleen Smith, using official or personal accounts, that meet any of the following conditions:
As of the date she initiated this appeal, June 27, 2016, Ms. Howard had received no response to her request.
On July 7, 2016, Senior Compliance Officer Sherri F. Pawson responded to the appeal on behalf of the University:
I was on vacation when the request arrived, Ms. Howard would have received an away message. Upon my return sent a formal acknowledgement [ sic ] (the same day Ms. Howard sent the appeal to your office). A few days later I sent a status update. Just earlier today I again wrote to Ms. Howard to discuss the production of the documents. I have followed my usual practice to notify the appropriate university officials to gather the records and I have kept Ms. Howard appraised [ sic ] of the process. I expect to have a response next week after I receive and review the records.
She attached an e-mail dated June 30, 2016, in which she had advised Ms. Howard: "As you[r] request includes several university administrators and covers several varied topics, I expect it will take additional time [to] identify and review the documents." In a follow-up e-mail dated July 5, 2016, she stated: "I expect to receive the documents late this week and will have [a] response for you next week."
On July 26, 2016, this office requested a status update from Ms. Pawson. She replied on August 5, 2016: "The University has provided partial responses to this request and continues to provide records on a rolling basis as responsive records are identified. There is a large of [ sic ] volume of potentially responsive records that must be reviewed; I expect it will take a month or more [to] complete the review."
On August 24, 2016, Ms. Howard sent a letter to this office advising that she had received a total of 83 pages of e-mails, but "[w]e have not received any information about how many pages remain." Furthermore, she advised that the University had made many redactions to the pages provided. In some cases, she asserts, redactions were made based on KRS 61.878(1)(i) and (j). 1 Specifically, however, Ms. Howard provides an e-mail dated August 4, 2016, in which Ms. Pawson stated: "I redacted personal cell phone and email addresses relying on KRS 61.878(1)(a) exempts 'Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. '" Ms. Howard challenges the propriety of redacting personal telephone numbers and e-mail addresses of Board of Trustees members.
Timeliness of response
KRS 61.880(1) requires a public agency to issue a written disposition of a request for records within three business days. KRS 61.872(5) sets forth limited circumstances under which a public agency may extend the time to produce public records:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
The University's vague and fragmentary information about the amount of records involved in this request does not fall into one of the categories of unavailability listed in KRS 61.872(5); nor did the University provide a date when the records would be provided or a "detailed explanation of the cause for further delay" as provided in that statute. Accordingly, we find that the University committed a procedural violation of the Act by its failure to comply with the time limitation imposed by KRS 61.880(1).
Invocation of KRS 61.878(1)(a)
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.
In
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013), the Supreme Court found that certain information, such as home addresses and telephone numbers and Social Security numbers, is not routinely pertinent to the public interest served by the Open Records Act. With regard to "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption, " the Court held, "the agency need not undertake an ad hoc analysis of the exemption's application to such information in each instance, but may apply a categorical rule." Id. at 89. With regard to the types of information at issue in Kentucky New Era , the Court found that the privacy interest "will almost always be substantial, and the public's interest in disclosure rarely so." Id. Therefore, the categorical redaction of this identifying information was upheld.
In 06-ORD-031, we ruled that disclosure of the e-mail addresses and other contact information of Kentucky Historical Society 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 14-ORD-197 (private e-mails of Board of Nursing licensees properly denied) and decisions cited therein.
We find nothing to distinguish this case from the result in 06-ORD-031. The private e-mail addresses of board members have no manifest bearing on how the Board of Trustees performs its public duties. Ms. Howard argues that because "board members . . . are conducting university business with their personal addresses," those e-mail addresses should be disclosed. The fact that members of the Board of Trustees are officials of a public agency does not, however, make their personal e-mail addresses a matter of public record even if those accounts are used for some public business. Provided the substance of the e-mails is disclosed, the addresses themselves do not shed any additional light on the University's conduct. Accordingly, we find that the private e-mail addresses of board members, as well as their personal telephone numbers, can properly be redacted 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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The record is undeveloped as to these redactions and thus is inadequate to enable us to rule on any assertion of KRS 61.878(1)(i) and (j).