Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision The question presented in these appeals by Christine Palm (consolidated for purposes of review) is whether the City of Nicholasville ("City") violated the Open Records Act in denying her separate undated requests for the addresses "of all residential properties that have had the water shut off due to [n]on-payment, service disconnection and transfer of service during the following dates (1/1/19-1/31-19)," and the addresses of all residential properties "that have had the sewer shut off due to [n]on-payment, service disconnection and transfer of service" during the same period. 1 Consistent with 18-ORD-058, this office finds the City did not violate the Open Records Act in denying Ms. Palm access to addresses of residential properties where utilities (water and sewer) were shut off "due to non-payment, service disconnection, and transfer of service" during a certain time period on the basis of KRS 61.878(1)(a).
On both occasions, Ms. Palm stated that she was making both the request for a commercial purpose. 2 In separate written responses dated February 18, 2019, City Clerk Kathy J. Walker denied the requests in accordance with 18-ORD-058 (affirming per KRS 61.878(1)(a) the denial of a request for a list of the addresses where a city turned off water service during the past 30 days). Ms. Walker noted that 18-ORD-058 specifically addressed "water turn offs," but maintained that its reasoning would apply with equal force to "sewer shut offs." In her undated appeal, received on February 28, 2019, Ms. Palm acknowledged the City "may redact all private information that is covered" under the Open Records Act, but reiterated that she only requested "the addresses of properties" where the sewer and water service was turned off "for the reasons listed above."
Upon receiving notification of Ms. Palm's appeals, City Attorney Darren T. Sammons responded on behalf of the City. Mr. Sammons first reiterated the City's position that 18-ORD-058 is controlling on the facts presented. Mr. Sammons acknowledged the City "can provide--and is willing to provide--documents with the protected information redacted. However, the only information that Ms. Palm seeks is the addresses themselves." Because 18-ORD-058 recognized that KRS 61.878(1)(a) authorizes the nondisclosure of the addresses in this context, which is "precisely the information Ms. Palm seeks to acquire," production of redacted versions of the responsive documents would not satisfy either of Ms. Palm's requests.
Mr. Sammons acknowledged that 18-ORD-058 dealt only with a request for the addresses of residences that had the water shut off, but further noted that in 96-ORD-176, cited with approval in 18-ORD-058, the Office of the Attorney General held that water and sewer bills for individual residences were protected under KRS 61.878(1)(a). Accordingly, the City maintained that KRS 61.878(1)(a), and its underlying rationale, "protects the information in the same manner, and for the same reasons, regardless of whether the information requested is for water or sewer shut offs."
In 18-ORD-058, this office first noted that a public agency bears the burden of justifying its denial of a request under KRS 61.880(2)(c). The Attorney General then summarized
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992) and
Zink v. Com., Dep't of Workers' Claims, 902 S.W.2d 825, 828 (Ky. App. 1994), outlining the relevant "mode of decision" for KRS 61.878(1)(a), specifically a "comparative weighing of the 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."
In analyzing the interests that were implicated, this office reasoned:
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. " 3 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 . . . and (2) the addresses of those residences.
18-ORD-058, pp. 4-5.
The instant appeal presents no basis to depart from this reasoning. In 18-ORD-058, this office found there was "no privacy interest implicated by the number of water shutoffs occurring within 30 days [not requested here], as that information is indicative solely of the public agency's own conduct. " Id. , p. 5. Here, as in that case, however, "the fact that a private individual was unable to pay a water [or sewer] bill, or neglected to do so, does not have a manifest bearing on whether [the City] properly performed its public functions, and thus constitutes private financial information protected by KRS 61.878(1)(a)." Id. The City of Nicholasville did not violate the Open Records Act in denying Ms. Palm's requests pursuant to KRS 61.878(1)(a) and 18-ORD-058.
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.
Footnotes
Footnotes
1 Ms. Palm indicated that she was filing both requests, "Pursuant to the Freedom of Information Act (FOIA)." To clarify, records in the custody or control of federal agencies are governed by FOIA, "while the Open Records Act (KRS 61.870 to KRS 61.884) pertains to records in the custody or control of agencies of the state and local governments." 96-ORD-118, p. 1; 06-ORD-108 (Lake Cumberland Corps of Engineers, a federal agency, is not subject to Kentucky Open Records Act). Conversely, in 04-ORD-090, p. 5 (citing Ferguson v. Alabama Criminal Justice Information Center, 962 F.Supp. 1446, 1447 (M.D. Ala. 1997)).
2 In relevant part, KRS 61.874(4)(a)provides:
Unless an enactment of the General Assembly prohibits the disclosure of public records to persons who intend to use them for commercial purposes, if copies of nonexempt public records are requested for commercial purposes, the public agency may establish a reasonable fee [based on the factors identified at KRS 61.874(4)(c)].
See 95-ORD-12; 18-ORD-174.
3 But see 09-ORD-196 (privacy exemption does not apply to aggregate water and sewer bills for multiple-user entities).