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 McCracken County Public Schools ("MCPS") properly relied on KRS 61.878(1)(a) in denying Donna House's October 4, 2018, request for "the global email contact list in which I may contact employees of the McCracken County Public Schools." For the reasons that follow, we find that MCPS improperly invoked the cited exception.
Ms. House's request, which she made on behalf of the Kentucky Association of Professional Educators, reached MCPS on October 11, 2018. In its response on October 12, 2018, MCPS stated that it was not requesting a certification of commercial or non-commercial purpose "at this time" because MCPS considered its e-mail address list to be protected by personal privacy, citing KRS 61.878(1)(a) and certain past decisions of the Attorney General. On that basis, MCPS denied the request. This office received Ms. House's appeal on October 29, 2018.
In her appeal, Ms. House argues that MCPS must have misunderstood her request as referring to "private emails of the school employees," whereas she was actually requesting "school owned" e-mail addresses "issued to public school employees to do public business." In a response dated November 1, 2018, MCPS clarified that it was not mistaken about the request; rather, it specifically argues that its global list of agency-issued e-mail addresses is exempt from public inspection under KRS 61.878(1)(a).
We begin with the admonition of 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 or otherwise provided by law shall be strictly construed." KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In Zink v. Com., Dep't of Workers' Claims, 902 S.W.2d 825, 828 (Ky. App. 1994) (citing Kentucky Bd. of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327-28 (Ky. 1992)), the Kentucky Court of Appeals explained its "mode of decision" under KRS 61.878(1)(a):
[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. ? As the Supreme Court noted, the circumstances of a given case will affect the balance.
(Emphasis added.)
Having recognized a cognizable privacy interest in the records at issue in Zink, the court turned to the issue of whether an invasion of privacy was warranted based on a weighing of the public interest in disclosure against the privacy interest involved:
We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. (Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. ? As stated in Board of Examiners, supra, "[t]he public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good. " 826 S.W.2d at 328. 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.
902 S.W.2d at 828-29.
Recognizing the existence of competing interests when KRS 61.878(1)(a) is asserted, this office has stated that "it is incumbent on the agency advocating nondisclosure of records relating to an individual ? to satisfy its burden of proof that the privacy interests of that [individual] are superior to the public's interest in disclosure. " 00-ORD-162. MCPS correctly observes that we have frequently found e-mail addresses in the possession of public agencies to be exempt from public disclosure under KRS 61.878(1)(a). 18-ORD-070; 17-ORD-103; 16-ORD-205; 14-ORD-197; 07-ORD-120; 06-ORD-205. In all of those cases, however, the information at issue consisted of private e-mail addresses.
Citing Zink, supra, at 829, MCPS argues that public, agency-issued e-mail addresses are indistinguishable from private ones in that they consist of information that does "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." This argument, however, places the cart before the horse, inasmuch as it concerns the comparative weighing of the public interest in disclosure against a recognized personal privacy interest. Under Zink, no balancing of interests is necessary until it has been determined that "the subject information is of a 'personal nature.'" Id. at 828.
We find no information of a "personal nature" in a list of agency-issued e-mail addresses. In 17-ORD-103, which dealt with a request for identifying information of vendors appointed by the Kentucky Office for the Blind, we recognized a distinction between private telephone numbers and those numbers which "represent 'land lines' on state property," finding "no basis to conclude that [state-owned phone numbers] would constitute personal information. " Neither is there any basis for considering agency-issued e-mail addresses "personal information. " 1 Therefore, since no personal privacy interest exists to be weighed against the public interest in disclosure, MCPS violated the Open Records Act by denying access to its list of public e-mail addresses. Pursuant to KRS 61.874(4)(b) , if Ms. House has requested the list for a commercial purpose, MCPS may require a certified statement of "the commercial purpose for which [it] shall be used."
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 proceedings.
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