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 Kentucky Office for the Blind ("OFB") properly relied on KRS 61.878(1)(a), 782 KAR 1:010, and 34 C.F.R. 361.38 in partially denying Mark Dolzadelli's March 4, 2017, request for identifying information for all vendors appointed under the Kentucky Business Enterprise ("KBE") program. For the reasons that follow, we conclude that the OFB's disposition of the request did not violate the Open Records Act except to the extent that it may have denied non-personal names or telephone numbers.
KRS 163.470(11) establishes within the OFB the Division of Kentucky Business Enterprise to "manage and supervise the Vending Facilities Program" under the federal Randolph-Sheppard Act, 20 U.S.C. §§ 107 et seq. , which creates employment opportunities for blind vendors on federal and state property. The KBE Division has responsibility under KRS 163.470(11) for licensing qualified blind persons as vendors.
Pursuant to 20 U.S.C. § 107-b-1(2), 34 CFR 395.14, and 782 KAR 1:010, KBE provides for the biennial election of a State Committee of Blind Vendors ("SCBV"), which represents all blind licensees in the Vending Facilities Program. The SCBV "actively participate[s] with the [OFB] in the major administrative and policy decisions affecting the overall administration" of the program. 782 KAR 1:010, Section 8. This "active participation," however, "[d]oes not supersede the office's final authority to administer the program." 782 KAR 1:010, Section 1(1)(b).
Mr. Dolzadelli, who chairs the SCBV's Subcommittee of Rules and Regulations, requested the following from the OFB:
1. Name of the appointed vendor and the name of each vending facility in the KBE program.
2. The contact phone number for the vendor at the vending facility.
3. The mailing address for the vendor that manages the vending Facility.
4. Email address for the vendor that manages the vending facility.
The request was received by the OFB on Monday, March 6, 2017.
On March 9, 2017, attorney Patrick B. Shirley, Education and Workforce Development Cabinet, on behalf of the OFB, partially granted and partially denied the request:
The information that you have requested is confidential pursuant to 34 CFR 361.38, KRS 61.878(1)(a) and 782 KAR 1:010 § 11(1). 782 KAR 1:010 § 11(1) provides in relevant part: "All identifiable personal information concerning applicant, licensee, and vendors shall be confidential consistent with 34 C.F.R. 361.38." All of the information that you have requested is considered personally identifiable information of vendors.
However, some vendors have provided the Kentucky Office for the Blind with permission to release to the State Committee of Blind Vendors the information that you have requested. 1 Therefore, information that you have requested will be provided to you for vendors that have given the Office for the Blind permission for release of their information. Information of vendors that have not provided such permission will not be provided to you.
Mr. Dolzadelli's appeal was received by this office on March 14, 2017. He argues that "[e]very vending facility has a public contact phone number, address and or email address created and issued under the authority of the Kentucky Business Enterprise Program" and the SCBV must have this information in order "to fully represent these vendors. "
Mr. Shirley, on behalf of the OFB, responded to the appeal on March 17, 2017. The OFB disputes that KBE issues any such public contact information, but contends that "even if it were true Mr. Dolzadelli did not request this information. He simply requested personal information of vendors at their vending facilities."
KRS 61.878(1)(a), which the OFB cited in its response, makes an exception to the requirements of the Open Records Act for "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " Based on the specific arguments made by the OFB, however, which cite state and federal implementing regulations mandating confidentiality, we find that the more pertinent exceptions are found in KRS 61.878(1)(k) and 61.878(1)(l). These provisions exempt from the obligation of public disclosure:
(k) All public records or information the disclosure of which is prohibited by federal law or regulation;
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General;Assembly[.]
Applicable administrative regulations may, in particular cases, be relevant to a privacy analysis under KRS 61.878(1)(a). See, e.g. , 14-ORD-113 (HIPAA regulations used as a guide to define privacy interest in personally identifiable health information). Additionally, since we find the cited state and federal regulations partially dispositive of this appeal in their own right, we include KRS 61.878(1)(k) and (l) in our analysis despite their not having been explicitly cited by the OFB.
We begin with 782 KAR 1:010, Section 11(1), which provides as follows:
All identifiable personal information concerning applicant, licensee, and vendors shall be confidential consistent with 34 C.F.R. 361.38. Identifiable personal information shall include documentation from an individual's vocational rehabilitation consumer file. Access to, or release of, the confidential personal information shall be governed by the provisions of 34 C.F.R. 361.38.
Mr. Dolzadelli argues that the scope of "identifiable personal information" is limited to only the documentation in vocational rehabilitation consumer files. This argument, however, is inconsistent with the governing federal regulation, which is not limited in such manner:
The State agency and the State unit must adopt and implement written policies and procedures to safeguard the confidentiality of all personal information , including photographs and lists of names .
34 CFR 361.38(a)(1) (emphasis added).
All personal information in the possession of the State agency or the designated State unit must be used only for the purposes directly connected with the administration of the vocational rehabilitation program. Information containing identifiable personal information may not be shared with advisory or other bodies that do not have official responsibility for administration of the program .
34 CFR 361.38(b) (emphasis added). Since the OFB has the sole "final authority to administer the program" under 782 KAR 1:010, Section 1(1)(b), it is apparent that the SCBV is an "advisory or other bod[y] that do[es] not have official responsibility for administration of the program" within the meaning of 34 CFR 361.38(b). Consequently, the SCBV is not entitled to "identifiable personal information" on vendors.
With regard to the definition of such terms as "all personal information" and "identifiable personal information, " we have long recognized that "a person's name is personal but it is the least private thing about him." OAG 82-234. In this instance, however, 34 CFR 361.38(a)(1) specifically makes "lists of names" confidential. Since the other items of information withheld by the OFB are not specifically mentioned in the regulations, and we have found no other interpretive guidance on the matter, we can only determine whether these items are "personal" within the reasonable scope of that term under KRS 61.878(1)(a).
The language of KRS 61.878(1)(a) "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." Id. "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
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.
By analogy, we have affirmed the categorical redaction of private e-mail addresses on multiple occasions. See, e.g. , 14-ORD-197 (Board of Nursing licensees) ; 06-ORD-031 (Kentucky Historical Society members); 16-ORD-205 (University of Louisville trustees). We find no distinction here as to vendors licensed by KBE. Accordingly, we find that the private mailing addresses and private e-mail addresses of vendors were properly withheld. The same is true of "the contact phone number for the vendor at the vending facility," to the extent that it may correspond to the personal mobile telephone of a licensed vendor.
Insofar as those telephone numbers may represent "land lines" on state property, however, we have no basis to conclude that they would constitute personal information. Similarly, "the name of each vending facility in the KBE program," unless it somehow incorporates the personal name of the vendor, would not constitute identifiable personal information. 2 To the extent that the OFB may have withheld non-personal telephone numbers and non-personal facility names, therefore, it has failed to meet its burden of proof under KRS 61.880(2)(c), and such denial would thus constitute a partial violation of the Open Records Act.
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 proceedings.
Footnotes
Footnotes
1 This permission was presumably granted pursuant to 34 CFR 361.38(e)(1), which provides: "Upon receiving the informed written consent of the individual. . ., the State unit may release personal information to another agency or organization, in accordance with a written agreement, for its program purposes . . . to the extent that the other agency or organization demonstrates that the information requested is necessary for its program."
2 Although "this office will generally defer to the public agency in its interpretation of confidentiality provisions which are binding upon it," 05-ORD-186, the OFB has provided no interpretation to warrant a conclusion that non-personal information is confidential.