Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Managing Editor Brendan McCarthy, Kentucky Center for Investigative Reporting, initiated this Open Records Appeal by undated letter (faxed on July 3, 2017), challenging the partial denial by the Louisville Metro Police Department ("LMPD") of his May 12, 2017, request for six categories of records pertaining to LMPD personnel serving as traffic escorts during certain periods of 2017. On May 31, 2017, Public Information Officer Alicia Smiley provided Mr. McCarthy with all existing responsive documents electronically (per his request); 1 however, LMPD redacted the "personal names, addresses and phone numbers of the secondary employer(s) pursuant to KRS 61.878(1)(a)" from each "Secondary Employment Request Form" as LMPD believed "this information to be an unwarranted invasion of personal privacy. Many of the secondary employers hired off-duty personnel specifically for security reasons and publicly divulging their names and other personal information could prove detrimental to their safety and that of their families." LMPD noted, "the majority of these escorts did not utilize LMPD vehicles, only off duty personnel. " (Original emphasis.)
On appeal, Mr. McCarthy advised that the secondary employment to which LMPD referred "consists of escorting or transporting individuals to various places in connection with the Kentucky Derby." Mr. McCarthy further observed that in some cases "it is obvious that the people escorted or transported" were not the people who hired the officer(s). Beyond that, Mr. McCarthy maintains that whether someone attended the Derby is not personal information, and, thus, disclosure of such information would not constitute a clearly unwarranted invasion of personal privacy. Upon receiving notification of Mr. McCarthy's Appeal from this office, LMPD reconsidered its position and provided him with copies of the responsive documents "with names and business address[es] of the individuals hiring off duty LMPD officers un-redacted." However, LMPD maintained that redaction of those private individuals' personal telephone numbers and home addresses pursuant to KRS 61.878(1)(a) was justified. Relying primarily upon the analysis found in Zink v. Commonwealth, 902 S.W.2d 825 (Ky. App. 1994), LMPD argued that the public has adequate information to be "information as to what LMPD is doing," as contemplated in that case. Disclosure of the personal telephone numbers and home addresses of the hiring individuals, LMPD asserted, would not offer additional insight as to whether LMPD is properly discharging its duties, the only relevant public interest to be considered. 12-ORD-138, p. 6, citing Zink at 829. Based upon the following, this office affirms the ultimate disposition of Mr. McCarthy's request.
In Kentucky Board of Examiners v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Kentucky Supreme Court established the standard for determining whether a public agency has properly relied upon KRS 61.878(1)(a) in denying access to public records. Recognizing the Act "exhibits a general bias favoring disclosure, " the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. The determination of whether a public agency has properly relied upon KRS 61.878(1)(a) turns on whether the offense to personal privacy that would result from disclosure of the information outweighs the public benefit, and is an "intrinsically situational" determination that can only be made in a "specific context." Id. See Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006)(holding that "bright-line rules permitting or exempting disclosure are at odds with controlling precedent" and "case-by-case analysis" is required); compare Kentucky New Era v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013)(reaffirming that ORA forbids "blanket" denials of but characterizing redaction policy of city as "categorical" and thus affirming its withholding of contact information, social security numbers, etc . of victims, witnesses, and uncharged suspects appearing in police department's arrest/ incident reports).
The Court of Appeals refined the standard of Kentucky Board of Examiners in Zink v. Commonwealth of Kentucky, 902 S.W.2d 825, 828 (Ky. App. 1994), reasoning that if the information requested is of a "personal nature," the next question is "whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy [,]'" a determination which "entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good." Zink at 828 (citation omitted). The only relevant public interest "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . " Id. at 829. "Our analysis does not turn on the purposes for which the request for information is made or the identity of" the requester. Zink at 828; see 06-ORD-084 (KRS 61.872(2) does not authorize public agencies to inquire into a requester's motives in seeking access to public records) ; 10-ORD-062. Rather, "the Legislature clearly intended to grant any member of the public as much right to access to information as the next." 2 Zink at 828.
In determining that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying the requester access to personal information contained in the injury report forms that were submitted by private citizens, the Court reasoned that the "relevant public interest supporting disclosure in [that] instance [was] nominal at best," and the dissemination of unsolicited information to injured workers might serve the "broad public interest" by educating injured workers regarding their legal rights under the workers' compensation statutes, but "[could not] be said to further the principal purpose of the Open Records Act. " Id. at 829. The result in Zink hinged on the fact that disclosure of this inherently private information "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. " Likewise, disclosure of the personal telephone numbers and home addresses of the private individuals that hired off-duty personnel of the LMPD to provide security would do little to further the public's right to monitor the actions of LMPD and is unnecessary given that LMPD has now disclosed the names of those individuals and their business addresses. See 93-ORD-90 (distinguishing between records pertaining to public employee's private and public employment as holding otherwise would result in all records of private corporations for whom public employees moonlight would automatically be public records) .
The Kentucky Supreme Court subsequently affirmed the categorical redaction of personal information of private individuals contained in law enforcement records in Kentucky New Era, Inc. v. City of Hopkinsville at 83, recognizing that "[p]rivate citizens ? have a compelling interest in the privacy of law enforcement records pertaining to them." "To implicate an individual's privacy interest, ? the adverse repercussions of public disclosure need not be severe." Id. On the other hand, "any private interest the requester may have in the information is irrelevant." Id. at 85. The City of Hopkinsville was providing the names of adults but addresses, telephone numbers, Social Security numbers, and other identifying information for crime victims, witnesses , and uncharged suspects had also been requested, purportedly in the interest of assuring the public that the police department was "providing equal protection to all parts of the community." Id. at 86. The Court found this interest legitimate but did not agree "that that interest can only be vindicated by sacrificing the privacy interests of all those with whom the police come in contact." Id. at 86-87.
Agreeing that the Open Records Act prohibits " blanket denials of ORA requests," the Court in Kentucky New Era determined that the City of Hopkinsville's redaction policy was more accurately "referred to as a 'categorical' one." Id. at 88 (original emphasis). The Court observed that the City had "determined with respect to a particular, recurring class of information -- information identifying private citizens in its police reports -- the privacy/ public-interest balancing so characteristically tips in one direction -- privacy -- that it is appropriate to withhold, categorically, information in that class." Id. at 88. 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. The Court found that the privacy interest of the individual with regard to information like that requested here " will almost always be substantial, and the public's interest in disclosure rarely so ." Id. (Emphasis added.)
Significantly, this office has also had occasion to affirm the "categorical redaction" of identifying information of private individuals pursuant to Kentucky New Era in a variety of contexts when there was no basis on which to distinguish it. See 15-ORD-093 (personal information, including telephone numbers and home addresses of private individuals, "have no manifest bearing on how LMPD performed its public duties, and therefore this information was properly subjected to categorical redaction under KRS 61.878(1)(a)"); 16-ORD-188 (personal information such as telephone numbers, birth dates, and home addresses of private individuals "have no manifest bearing" on how the University of Louisville performed its public duties nor has it "been demonstrated or alleged that the names of students and private individuals" are "demonstrably necessary to a full examination of the University's performance of its duties"); 14-ORD-067; 14-ORD-108; 14-ORD-123; 14-ORD-127; 14-ORD-178; 16-ORD-120; 16-ORD-121. Consistent with Kentucky New Era , this office recently noted that names of private individuals may also be redacted "if there is no indication that their disclosure would serve the public purpose of the Open Records Act. " 17-ORD-004, p. 5; 17-ORD-066 ("[E]ven if 12-ORD-116, applying Zink , was not directly on point, in the absence of any such indication the redaction of the names of the 911 callers by LMPD, as well as their telephone numbers, on the basis of KRS 61.878(1)(a) was justified under Kentucky New Era as construed in these decisions. "). "The warrant for disclosure, it bears repeating, must be a public purpose. . . . Disclosures that shed no meaningful light on agency performance cannot warrant an invasion of a private citizen's privacy. " Lawson v. Office of the Attorney General, 415 S.W.3d 59, 70 (Ky. 2013); 14-ORD-108. W
While this office finds the argument by LMPD on appeal that disclosure of this information "would put [the hiring individuals] at risk of a variety of injurious actions" unpersuasive, particularly after the Derby had already occurred, the fact remains that information such as "home address and telephone number are generally accepted by society as details in which an individual has at least some expectation of privacy. . . . [T]his information is no less private simply because that information is available someplace." Zink at 828. Because the information at issue has long been recognized as inherently personal, the question becomes whether disclosure of the information redacted would further "the principal purpose of the Open Records Act. " Id. Even assuming that Kentucky New Era is not entirely controlling, inasmuch as the responsive documents are not "law enforcement records" in the conventional sense, the Attorney General has followed this line of reasoning in affirming the categorical redaction of private citizens in various other contexts. In addition, this office has also consistently held that even "disclosure of the home addresses and telephone numbers of public employees "sheds no light on an agency's performance of its public duties." 06-ORD-036, pp. 10-11 (emphasis added); 13-ORD-110. It stands to reason that if the relevant public interest has been deemed "nominal at best" as to public employees, disclosure of this personal information relating to private individuals would certainly "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. " Id. See 14-ORD-123; 15-ORD-093. Inasmuch as telephone numbers and home addresses of private individuals "have no manifest bearing on how LMPD performed its public duties," the Attorney General finds that LMPD properly redacted this information per KRS 61.878(1)(a). 15-ORD-093, p. 5; 93-ORD-32 (public agency was entitled to withhold personal information such as telephone numbers and home addresses of references provided on job applications).
Either party may appeal this decision by initiating action in the appropriate circuit court per 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 must not be named as a party in that action or in any subsequent proceeding.
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