Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Richmond Utilities, a department of the City of Richmond, violated the Open Records Act in denying Isaiah Freeman's December 28, 2017, request for "the address' [ sic ] of all residential properties that have had the water shut off in the last 30 days (11-27 to 12-27)." For the reasons stated below, we find that Richmond Utilities partially violated the Act to the extent private information could have been redacted from an existing record.
In his request to Richmond Utilities, Mr. Freeman indicated: "you may redact all private information that is covered in the Kentucky open records act." Richmond Utilities' response on January 2, 2018, noted that KRS 61.878(1)(a) exempts from the Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " Summarizing past decisions of the Attorney General which have recognized a substantial privacy interest in water customers' billing records, counsel for the agency stated:
You do not request the actual bills, however you request information regarding payment or non-payment of those bills, and with this information, you could "infer a particular lifestyle of a residential customer. " As stated in the Attorney General opinion, customers have an expectation of privacy in this information. While you do not request the names of those customers, with the addresses, it is possible for you to identify the individual customers whose services were shut off.
Richmond Utilities accordingly denied the request on grounds that "the privacy interest of a customer's financial status greatly outweighs the public's need to know that the utilities at a certain address has [ sic ] been shut off."
Mr. Freeman initiated this appeal on January 8, 2018, arguing as follows:
I did not request any information that has to due [ sic ] with billing or reason for shut off. There are many reasons the water may be shut off from a property, including the city initiating shut off for maintenance issues, the resident moving, service disconnections, leaks, etc. The City of Richmond has made an assumption that the reason for all shut offs are [ sic ] for billing purposes, which is false.
He argues that the names and addresses of individuals who own property in Richmond are "already public," along with their property values and tax information, and that therefore there is no reasonable expectation of privacy in the records withheld by Richmond Utilities.
In a response to this appeal dated January 15, 2018, Richmond Utilities refutes Mr. Freeman's assertions about shutting off water service:
First, requesting properties that had water "shut off" can only mean a physical turning off of water at a meter by staff of Richmond Utilities. Generally, when a customer moves, the service is transferred back into the landlord's name or is transferred into the buyer's name simultaneously, but there is never physical shut off. Second, records kept as part of temporary shut offs for maintenance issues or leaks would be a "service order" and easily distinguishable from the list of persons whose water was shut off for non-payment.
If the addresses for customers whose water was shut off for non-payment is provided, the names of customers could be determined by a search at the property valuation administrator's office or even by physically visiting the property.
Thus, Richmond Utilities argues that all addresses on the list have had a shutoff for the same reason, and "whether a customer has had his or her water shut off for non-payment is personal information for which a customer has a reasonable expectation of privacy. "
In analyzing the arguments made by the parties, we take into account the public agency's burden of proof in sustaining its action under KRS 61.880(2)(c). We are further mindful of the admonition in KRS 61.871 that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 ? shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others. "
In 1992, the Kentucky Supreme Court established a standard by which we judge the propriety of a public agency's reliance on KRS 61.878(1)(a) as a basis for denying access to public records. At pages 327 and 328 of Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Court articulated the following standard:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
The Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity...." Id.
In a subsequent analysis of the privacy exemption, the Court of Appeals refined this standard. Zink v. Com., Dep't of Workers' Claims, 902 S.W.2d 825 (Ky. App. 1994). At page 828 of that opinion, the court discussed its "mode of decision":
[O]ur analysis begins with a determination of whether the subject information is of a 'personal nature.' If we find that it is, we must then determine whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy. ' This latter determination 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. [Bd. of Examiners, supra,] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
The public interest to be considered is the purpose of the Open Records Act in general, which "is meant to open the state's public agencies to meaningful public oversight, to enable Kentuckians to know 'what their government is up to.' It is not meant to turn the state's agencies into a clearing house of personal information about private citizens readily available to anyone upon request." Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013). See also Zink, supra, 902 S.W.2d at 829 ("the purpose of disclosure ? is not fostered however by disclosure of information about private citizens ? that reveals little or nothing about an agency's own conduct" ).
In 96-ORD-176, we held that water and sewer bills for individual residences were protected by the personal privacy exemption in KRS 61.878(1)(a) inasmuch as information regarding the amount of water and sewer usage could "be used to infer a particular life style of a residential customer. " 1 In this case, there is nothing in the record to indicate that an amount of usage is included in the list of users whose water has been shut off for nonpayment. "It is impossible 'to infer a particular life style of a residential customer' by inspecting a customer list that contains no associated information. " 15-ORD-185. If amounts of usage, by individual residences were included in the document at issue here, they could be redacted under our decision in 96-ORD-176. Otherwise, however, the only privacy interest at issue is the fact that the bills were unpaid.
The "payment or nonpayment of taxes and fees by individual citizens is information of a personal nature which touches upon their personal and private lives and in which they have some expectation of privacy. " 97-ORD-9. "It is a widely held societal belief that matters of personal finance are intensely private and closely guarded." Cape Publications, Inc. v. University of Louisville Foundation, Inc., 260 S.W.3d 818, 822 (Ky. 2008).
On the other hand, "[i]t is in the public's interest to monitor who has failed to meet their legal obligations and whether any particular persons are being given preferential treatment in these matters." 97-ORD-9. The records at issue in 97-ORD-9 related solely to urban county council members and candidates for that office, thus creating a heightened public interest due to the suggestion that the council members might have been accorded preferential treatment as to collection of their delinquent local fees and taxes. Accordingly, in that decision, we found that the privacy interest of those public figures did not outweigh the public interest in disclosure, except as to "the amount ? paid, or owing." Id. (quoting 92-ORD-1119.)
Here, the balance of public and private interests is different. There is no indication in the record that any of the residences in question belong to public officials or candidates for office, nor any suggestion of disparate treatment of any individuals by Richmond Utilities. The only information to be gleaned from the disputed record is (1) the number of residences for which water was shut off in a 30-day period and (2) the addresses of those residences. As to the former, we find no privacy interest implicated by the number of water shutoffs occurring within 30 days, as that information is indicative solely of the public agency's own conduct. As to the latter, however, the fact that a private individual was unable to pay a water bill, or neglected to do so, does not have a manifest bearing on whether Richmond Utilities properly performed its public functions, and thus constitutes private financial information protected by KRS 61.878(1)(a) .
Thus, we find that Richmond Utilities did not violate the Open Records Act by withholding the residential addresses. 2 Nevertheless, to the extent that the record in question could be redacted, as provided in KRS 61.878(4), 3 to show only the number of water shutoffs performed within the 30-day period, Richmond Utilities was obligated to make that redaction and provide the remainder of the record. Accordingly, to the extent that such redaction could have been made, we find the agency partially in violation of the 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 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.
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