Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Lexington Public Library ("Library") violated the Open Records Act in its disposition of Scott Horn's request for various records. For the reasons set forth below, we find that the Library committed a procedural violation of the Act and that a referral to the Kentucky Department for Libraries and Archives is warranted.
By letter dated May 1, 2018, Scott Horn ("Appellant") faxed the following request for records to the Library:
1. A list of names, email addresses, and other official contact information for all current members of the LPL Board of Trustees and Advisory Boards.
2. All policies and procedures that deal with investigating, responding to and/or retaining complaints/grievances from employees or the public. For any that apply to the Library but are not created/maintained by them (e.g. KDLA documents), please inform me of all that apply and who the official custodian of each record is.
3. All records maintained by the Library that fall into the following series from the Local Governments [Records] Retention Schedule published by the Kentucky Department of Libraries and Archives (KDLA), excluding any documents previously provided to me by the Library. See: https://kdla.ky.gov/Pages/default.aspx , and https://kdla.ky.gov/Pages/default.aspx
4. All additional or more specific Retention Schedules that apply to [the Library] other than the two above from the KDLA.
Mauritia Kamer, attorney, responded on behalf of the Library on May 4, stating: "The Library is in the process of reviewing your Open Records Act request dated May 1, 2018, and you will have a response by the close of business on Monday May 7, 2018." On May 7, 2018, Ms. Kamer responded more fully to the request on behalf of the Board. With regard to Appellant's Request No. 1, the Library provided the names and positions of the Board of Trustees and the names of the Advisory Board members. The official contact information of all of the various members was given as "Lexington Public Library, 140 East Main Street, Lexington, KY 405017." The response also provided records responsive to Request No. 2.
In regards to Request No. 3, the Library responded that ". . . Series L4926 and L4965 apply to local governments and not public libraries. As such, the Library does not maintain an 'Employee Grievance File' or a 'Citizen Complaints/Petitions'. I am attaching a copy of the Public Library Records Retention Schedule that is applicable to the Library. Nowhere are the terms 'Employee Grievance File' or 'Citizen Complaints/Petitions' referenced. " In response to Request No. 4, the Library responded that it had no responsive records.
By letter dated June 18, 2018, Appellant appealed the Library's response to this office, specifically appealing the Library's denial of board members' email addresses and the Library's denial that the Local Governments General Records Retention Schedule applied to it.
Violation of KRS 61.872(5) . The record on appeal reflects that the Library failed to comply with the procedural requirements of KRS 61.872(5). 1 Because the Library did not fulfill Appellant's request within three business days, it was obligated, pursuant to KRS 61.872(5), to explain in detail the cause for delaying production beyond three business days and to state the earliest date by which the records would be produced. The Library's response that Appellant would "have a response by the close of business on Monday, May 7, 2018[,]" does not provide a detailed explanation for delay, nor does it state whether or not the records would be provided. The Attorney General has consistently recognized that procedural requirements of the Open Records Act "are not mere formalities but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3 (citing 93-ORD-125, p. 5); 05-ORD-190; 09-ORD-186; 12-ORD-085. The Library failed to comply with the procedural requirements of KRS 61.872(5).
Request for email addresses . 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 Bd. 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., Dep't 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 Kentucky 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 ("KHS") 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 they perform their public duties. The fact that board members 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. The e-mail addresses themselves do not shed any additional light on the Library's conduct. Accordingly, we find that the private e-mail addresses of board members were properly redacted pursuant to KRS 61.878(1)(a). 2 3
Request for Records Under Local Government Retention Schedule . The Library denied the request for employee grievances and citizen complaints/petitions on the basis that Series L4926 and L4965 of the Local Governments Records Retention Schedule, referenced by Appellant as part of his records request, are not applicable to public libraries. We disagree.
KRS 171.420(3) provides that the State Archives and Records Commission ("Commission") shall be the final authority for the disposition of all public records in Kentucky. KRS 171.450(1)(a) requires the Department for Libraries and Archives ("Department") to establish procedures for the compilation and submission to the Department of lists and schedules of public records proposed for disposal. KRS 171.450(2) requires the Department to promulgate adminis-trative regulations to enforce the provisions of KRS 171.410 to 171.740. The administrative regulation at 725 KAR 1:061 identifies records retention and disposition schedules approved by the Commission that state and local agencies shall follow for retention and disposition of public records. In particular, 725 KAR 1:061(3) states that Kentucky local government agencies shall comply with:
(a) Records Retention Schedule, Local Government General Records Schedule;
(b) Records Retention Schedule, General Schedule for Electronic and Related Records[.]
The Department's website 4 explains that a local agency may be required to comply with Local Governments General Records Retention Schedule as well as more specific retention schedules:
A schedule for dealing with the retention of library-specific records is the Public Library & Library Board Records Retention Schedule and is available online at: https://kdla.ky.gov/records/recretentionschedules/Documents/Local%20Rec…
In addition, libraries will use the Local Governments General Records Retention Schedule for general records created and used by government agencies and district . It is available online at: https://kdla.ky.gov/Pages/default.aspx . (Emphasis added).
The series of records referenced by Appellant, Series L4926, Employee Grievance File, and Series L4965, Citizen Complaints/Petitions, are included in the Local Governments General Records Retention Schedule.
The Library's statement to Appellant that it is not subject to the Local Government Records Retention Schedule warrants a referral to the Department for Libraries and Archives for action as that agency deems warranted. As the Library erred in denying that the Local Government Retention Schedule applies to libraries, we find that the Library must conduct a search for employee grievances and citizen complaints/petitions included under Series L4926 and L4965 of the Local Government Retention Schedule and provide any responsive records to Appellant.
Prior requests . Appellant's appeal references prior record requests he has made to the Library and alleges errors in the Library's responses to those prior requests. As those prior requests have been determined to be moot, or were not appealed to this office pursuant to the procedure set forth in KRS 61.880(2)(a), we decline to review those complaints.
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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