Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Wesley E. Bright initiated this appeal by letter dated October 27, 2017, challenging the denial by the Kentucky Department of Fish and Wildlife ("Department") of his October 16, 2017, request for a "complete copy of the [sic] Mr. Swafford's hunting/ fishing records." In a timely written response, the Department advised Mr. Bright that "names and personal information of the individual hunters/ anglers are being withheld as an unwarranted invasion of personal privacy pursuant to KRS 61.878(1)(a). You may obtain the records you are requesting by providing a release from Mr. Swafford or through a subpoena duces tecum to the Records Custodian and the certified records can be provided to you in lieu of appearance." On appeal, Mr. Bright advised, "Mr. Swafford filed a lawsuit after being involved in a motor vehicle accident on October 29, 2014[. . .] Mr. Swafford has testified that he is no longer able to hunt and fish due to the injuries he has suffered as a result of this accident. We are now requesting these records to corroborate this testimony."
Upon receiving notification of Mr. Bright's appeal from this office, the Department supplemented its original response. Staff Attorney Alea Amber Arnett first noted that her client's response "to every requester of records must be the same; except for inmates, the identity of the person requesting the records has no bearing on the response or whether the records are properly exempt or able to be disclosed. Kentucky Lottery Corp. v. Stewart, 41 S.W.3d 860, 863 (Ky. App. 2001); KRS 197.025." In support of the Department's reliance on KRS 61.878(1)(a), Ms. Arnett further advised:
The purpose of the Open Records Act is to allow the public to know what its government is doing. 05-ORD-075 (quoting Zink v. Commonwealth, 902 S.W.2d 825, 829, 838 (Ky. App. 1994)). Generally, for licensee information obtained by the government, the reason for disclosure is to ensure that the minimum qualifications for licensure have been met or to protect the public in instances of occupational licenses. 92-ORD-1238; OAG 84-93; OAG 84-51. Thus, the Department would disclose records on whether someone was a commercial hunting guide licensed under 301 KAR 2:030.
But anyone with a date of birth and identification number (driver's license, state identification, or Social Security number) can purchase a hunting license or a fishing license, and there are no minimum qualifications to apply (unless there is an examination of whether the criteria for issuing a disability license were properly administered), so there is no public interest in those records. 301 KAR 5:020. Those records do not reflect agency action and do not reflect how the Department conducts business. In addition, hunters and anglers have an interest in keeping their identities, legal activities, and contact information private from anti-hunting groups, organizations, or individuals who could subject them to harassment or from individuals who would target them for theft due to the equipment associated with their sport. These types of privacy concerns are not new to open records law. For instance, with respect to licenses for concealed carry[ing] of deadly weapons, the concerns were so great that the Legislature created additional statutory safeguards on the disclosure of that licensing information. KRS 237.110; 04-ORD-060.
Ms. Arnett advised that the Department's invocation of KRS 61.878(1)(a) here does not mean that the Department has a policy of issuing blanket denials of requests for hunting and fishing records. Rather, the Department considers requests "on a case-by-case basis." For instance, the individual hunter's privacy interest was outweighed and the Department released the records (with contact information redacted) "in response to a recent request for a celebrity/public figure's hunting records." In that case, Ms. Arnett continued, "if the Department had waived the license requirement and fee for a celebrity/public figure, then the records would tell the public if the government was doing its job. So the license information/identity was disclosed in response to that request as the hunter's privacy interests were outweighed by the public's interest." Ms. Arnett also noted that in cases of illegal hunting and fishing, "the Department's law enforcement records are subject to disclosure (unless the investigation or prosecution is pending), and those records can inform the public of the Department's action and how [its] conducts its law enforcement business." Reiterating the identity of the requester is legally irrelevant, and the Department "seeks to protect private citizens' information to the extent allowed by law," Ms. Arnett asked this office to affirm the denial on the basis of KRS 61.878(1)(a) "in order to protect the privacy interests of Kentucky's hunters and anglers. "
Existing legal authority permits the Department to withhold truly personal information, such as the home addresses, telephone numbers, Social Security numbers, medical information, etc., thereby accomplishing its goal of protecting the privacy of private citizens, but it does not authorize the Department to withhold such records in their entirety. Inasmuch as the remaining information contained on the record(s) cannot be properly characterized as "personal," our analysis under KRS 61.878(1)(a) proceeds no further; 1 the Department erred in denying Mr. Bright's request entirely rather than separating the exempt material per KRS 61.878(4). In Kentucky Board of Examiners of Psychologists 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 (or portions thereof). 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, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013)(reaffirming that ORA forbids "blanket" denials but characterizing redaction policy of city as "categorical" ).
The Court of Appeals refined the standard of Kentucky Board of Examiners of Psychologists 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, 902 S.W.2d 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." See 17-ORD-154 (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 was unnecessary given that LMPD disclosed the names of those individuals and their business addresses); 17-ORD-066 (requester's purpose was to pursue clients' legal claim and no significant public interest was asserted); 17-ORD-075.
The Kentucky Supreme Court recently expressed "no hesitation" in recognizing that "Kentucky's private citizens retain a more than de minimus interest in the confidentiality of the personally identifiable information collected from them by the state." Kentucky New Era, Inc., 415 S.W.3d at 85. Significantly, the Court rejected the practice of " blanket denials of ORA requests, i.e., the nondisclosure of an entire record or file on the grounds that some part of the record or file is exempt . . . ." Id. at 88 (original emphasis). In affirming the categorical redaction of personal information of private individuals contained in law enforcement records, the Court recognized that "[p]rivate citizens ? have a compelling interest in the privacy of law enforcement records pertaining to them." Id. at 83. "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 deemed 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.
The Court in Kentucky New Era, Inc. determined that the City of Hopkinsville's redaction policy was more accurately "referred to as a 'categorical' one[,]" observing 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. However, the agency in that case had " complied scrupulously with KRS 61.878(4) by 'making available for examination' the requested records after having separated, in its view, the excepted private information from the nonexcepted public information ." Id. at 88 (emphasis added). The Department, on the other hand, improperly withheld the licensing records in their entirety.
This office has also had occasion to affirm the "categorical redaction" of identifying information of private individuals pursuant to Kentucky New Era, Inc. in a variety of contexts when, as in this appeal, 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-178; 16-ORD-120; 16-ORD-121. Under this controlling authority, the Department can sufficiently address the stated concern for the privacy of Mr. Swafford with a categorical redaction of personal information contained on the form, i.e. , Social Security number, medical information ("Disability Authorization," if any), home address (telephone number does not appear), driver's license number, date of birth, and hunting/ fishing license number, but a blanket denial of Mr. Bright's request is not permissible. 3 In so holding, this office is guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," and the corollary judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. " Kentucky Board of Examiners of Psychologists, 826 S.W.2d at 327. See KRS 61.880(2)(c).
Assuming for the sake of argument that any of the remaining information contained on the form was personal, "[w]here, as here, the public and private interest are nearly equal in weight, the balance tips in favor of disclosure [as to non-identifying information such as the kind of license issued, the year in which the license was issued, the "agent" where the license was purchased, the county of purchase, the sale date, and the status of the license] ." 09-ORD-166, p. 4. If the General Assembly had intended to extend protection to such information specifically, it would have done so, just as it did with regard to "other identifying information" contained on applications for licenses to carry a concealed deadly weapon at KRS 237.110(10). See 03-ORD-022; 04-ORD-060. Based upon the foregoing, this office finds the Department violated the Act in denying Mr. Bright's request entirely rather than redacting the personal information from the record per KRS 61.878(1)(a) and 61.878(4).
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes