Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : Existing legal authority construing KRS 61.878(1)(a) permits the Office of the Governor to withhold the home addresses of private individuals whose voting rights have been restored in response to a request made by the Secretary of State's Office under the Open Records Act. However, the agency's initial and supplemental responses lacked the specificity required under KRS 61.880(1). Because KRS 61.878(5) is permissive, rather than mandatory, the denial by the Governor's Office does not constitute a violation of the Act.
Open Records Decision
The question presented in this appeal is whether the Office of the Governor (the "Governor's Office") violated the Open Records Act in the disposition of Mary Sue Helm's August 19, 2019, request for the "spreadsheet including the address[es] of individuals (173) whose civil rights were restored by executive order dated July 3, 2019 and delivered to our office on July 5, 2019 and returned to you after affixing the State seal, [and] signature of Secretary of State attesting Governor's signature on the order, as well as in processing certificates for each individual in which the State seal, Governor's signature, and Secretary of State's signature were affixed and returned to your office on August 2, 2019." 1On August 21, 2019, the Governor's Office declined to provide the requested addresses to Ms. Helm "as they are protected under the Open Records Act as personal identification information." Based upon the following, this office finds the initial response of the Governor's Office was procedurally deficient in failing to cite the relevant statutory exception and explain how it applied in accordance with KRS 61.880(1). However, the Governor's Office refuted Ms. Helm's argument regarding KRS 61.878(5) in responding to her appeal; it also belatedly cited KRS 61.878(1)(a) to justify its denial though its appeal response also lacked the specificity required under KRS 61.880(1). See KRS 61.880(2)(c). Existing legal authority supports the agency's position that KRS 61.878(5) is permissive, rather than mandatory, and further validates the withholding of home addresses of private individuals per KRS 61.878(1)(a). The denial is affirmed on that basis.
Ms. Helm, Executive Director of the Office of Elections and Administration for the Secretary of State's Office, subsequently informed the Governor's Office that she requested the addresses for the purpose of informing the individuals "of their eligibility to register, the multiple options available to register (such as online, in-person at clerk's office, etc.) and most importantly the deadline to register for participating in the November 5, 2019 general election." She asked the Governor's Office to reconsider its denial and provide the requested addresses pursuant to KRS 61.878(5) because the information "is necessary in the performance of a legitimate government function." The Governor's Office subsequently advised Ms. Helm "that since the Governor restored their rights, our office will advise the recipients of their registration and voting rights and options, including those set forth in your email." She later asked the Governor's Office to confirm it was denying the request for the addresses of the individuals whose rights have been restored. This appeal followed on September 5, 2019.
Counsel for the Governor, Matthew F. Kuhn, responded to Ms. Helm's appeal on behalf of the Governor's Office. Without further explanation, he stated the Governor's Office denied the request "because it sought 'information of a personal nature' protected by KRS 61.878(1)(a)." The Governor's Office asserted, "Ms. Helm did not challenge this conclusion, nor could she." Rather, she invoked KRS 61.878(5), because the Secretary of State "needs the restorees' addresses because she desires to contact them about registering to vote." The Governor's Office noted that Ms. Helm did not "cite any legal authority that requires or authorizes the Secretary of State to take this step once an individual's ability to vote has been restored." 2Citing prior decisions by this office recognizing that a public "agency 'cannot be deemed to have violated the Open Records Act' in declining to share records under KRS 61.878(5), Mr. Kuhn further argued, "[t]his issue is not for the Attorney General to decide." This office respectfully disagrees. Contrary to his assertion that the Attorney General "lacks the authority to weigh in on this matter[,]" neither KRS 61.878(5) nor any other provision of the Open Records Act limits the jurisdiction of this office under KRS 61.880(2) in such a manner. Rather, KRS 61.880(2)(a) requires the Attorney General to "review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884."
Pursuant to KRS 61.878(5): "The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function." As with any decision involving application or interpretation of a statute, our duty "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Bd. of Educ. of Jefferson Cty. , 873 S.W.2d 575, 577 (Ky. 1994)(citation omitted). The Attorney General is not at liberty to add or subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id . In the absence of a statutory definition, this office "must construe all words and phrases according to the common and approved uses of language" pursuant to KRS 446.080(4).
Claude D. Fannin Wholesale Co. v. Thacker , 661 S.W.2d 477, 480 (Ky. App. 1983). "[I]t is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth v. Gaitherwright , 70 S.W.3d 411, 413 (Ky. 2002)(citation omitted). Adopting the unprecedented interpretation of KRS 61.878(5) set forth by the Governor's Office with regard to jurisdiction would require precisely that. However, the provision is facially permissive rather than mandatory.
In construing this provision, as the Attorney General has done on multiple occasions, this office has consistently recognized that "public agency exchange of otherwise exempt public records is a 'laudable goal,' and one that is to be strongly encouraged," insofar as it "eliminates duplication of effort and conserves resources." 96-ORD-177, p. 7; 07-ORD-063; 18-ORD-112. Inasmuch as the statutory exceptions codified at KRS 61.878(1) are discretionary and should be used as "a shield and not a shackle," the Open Records Act does not prohibit a public agency from releasing otherwise exempt records. OAG 79-275, pp. 3-4; 08-ORD-094. That is especially true when the facts presented implicate KRS 61.878(5). Of course, KRS 61.878(5) "is grounded in the notion that the recipient agency will responsibly and appropriately use the [records or] information [provided]." 96-ORD-164 (overruled on other grounds in 96-ORD-177). Accord 03-ORD-211. See 96-ORD-110 (KRS 61.878(5) "has been interpreted to mean that even if records are exempt from the public generally, they should be made available to public agencies, and by extension, public officials, for legitimate governmental purposes")(citations omitted); 03-ORD-134; 07-ORD-063. "The exceptions to the Open Records Act have been deemed 'convenient shields which public officials may use when they desire to do so [and] not restraints to keep them from opening up any records in their custody,' OAG 79-275, p. 3[.]" 05-ORD-133, p. 2. This reasoning is equally persuasive with regard to application of KRS 61.878(5). The Kernel Press, Inc., d/b/a The Kentucky Kernel v. Univ. of Ky . S.W.3d , 2019 WL 2236421, at *10 (Ky. App. 2019)(noting that even if public records are exempt under KRS 61.878(1), the Act provides that none of the statutory exceptions codified there "shall prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need...."). Nevertheless, "the decision to release otherwise exempt records rests with the agency and not with the Attorney General, no matter how compelling the requester's need for those records." 05-ORD-133, p. 2.
Here, Ms. Helm requested the addresses in furtherance of a legitimate governmental purpose, and in the performance of a legitimate government function -- specifically, advising individuals whose voting rights were restored of how and when to register in order to vote in the upcoming general election. The record lacks evidence to refute this assertion. 3KRS 61.878(5) was designed to address exactly this kind of situation. See 07-ORD-063; 08-ORD-183. Although KRS 61.878(5) is not mandatory, nor can the Governor's Office be deemed to have violated the Act in declining to honor Ms. Helm's request, a determination of this issue falls squarely within our scope of review as outlined in KRS 61.880(2). See 18-ORD-112. Compare 05-ORD-063 (Attorney General is "not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1).")(citing 99-ORD-121). Here, as before, this office finds that KRS 61.878(5) is facially permissive rather than mandatory. Accordingly, the denial by the Governor's Office did not constitute a violation of the Act pursuant to KRS 61.878(5), regardless of Ms. Helm's purpose in asking for the information. Having so determined, our analysis will focus on the substantive question presented: whether KRS 61.878(1)(a) authorizes the Governor's Office to withhold the requested addresses.
KRS 61.880(1) provides that a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld ." (Emphasis added). The Governor's Office initially failed to cite KRS 61.878(1)(a) or provide any explanation of how that exception applied; it partially remedied this deficiency on appeal. In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance."
Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 07-ORD-226; 12-ORD-211; 15-ORD-080; 17-ORD-235; 19-ORD-147. "[I]t is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3)." 00-ORD-10, pp. 10-11(citation omitted). A "bare assertion," such as that given by the Governor's Office, both initially and on appeal, simply does not satisfy that burden. Id. , p. 11; 17-ORD-197; 19-ORD-147. See
City of Ft. Thomas v. Cincinnati Enquirer , 406 S.W.3d 842, 852 (Ky. 2013). However, existing legal authority supports the agency's ultimate disposition of Ms. Helm's request.
The General Assembly has mandated that certain records are not open for public inspection, including those "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(1)(a). 4In
Zink v. Commonwealth , 902 S.W.2d 825, 828 (Ky. App. 1994), the Kentucky Court of Appeals observed that determining whether disclosure is warranted under KRS 61.878(1)(a) "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. . . . [T]he circumstances of a given case will affect the balance[.]" (Citation omitted). The relevant "analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request." Id . at 828; 16-ORD-231; 19-ORD-147. Rather, "the Legislature clearly intended to grant any member of the public as much right to access to information as the next." 5 Zink at 828. The only relevant public interest considered "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . [T]he purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Zink , 902 S.W.2d at 829. 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." Id. See 06-ORD-084; 10-ORD-062; 12-ORD-227; 17-ORD-066. Information such as "home address and telephone number are generally accepted by society as details in which an individual has at least some expectation of privacy. . . . [T]his information is no less private simply because that information is available someplace." 6 Zink , 902 S.W.2d at 828; 17-ORD-154.
Having engaged in a "comparative weighing of antagonistic interests," the Court in Zink determined that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying access to personal information contained in the injury report forms that private citizens had submitted. In so holding, the court reasoned that the "relevant public interest supporting disclosure in [that] instance [was] nominal at best," and while dissemination of unsolicited information to injured workers might serve the "broad public interest," it "[could not] be said to further the principal purpose of the Open Records Act." Zink , 902 S.W.2d 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." Id. See 17-ORD-154. More recently, the Kentucky Supreme Court 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, 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 in that case 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's redaction policy was more accurately "referred to as a 'categorical' one[,]" observing that it 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. Rather, 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. See 17-ORD-066.
Even if Kentucky New Era, Inc . was not deemed entirely controlling, inasmuch as the responsive documents are not "law enforcement records," the Attorney General has followed this line of reasoning in affirming the categorical redaction of private citizens in various other contexts. See 14-ORD-067; 14-ORD-123; 14-ORD-127; 14-ORD-178; 15-ORD-093; 16-ORD-120; 16-ORD-188; 17-ORD-154; 18-ORD-105. In addition, this office has also consistently held that even "disclosure of the home addresses and telephone numbers of public employees "sheds no light on an agency's performance of its public duties." 06-ORD-036, pp. 10-11 (emphasis added); 13-ORD-110; 17-ORD-154. It stands to reason that if the relevant public interest has been deemed "nominal at best" as to public employees, whose privacy interests are diminished, then disclosure of this personal information relating to private individuals would certainly "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." Id. See 14-ORD-123; 15-ORD-093; 16-ORD-205; 17-ORD-154. "Inasmuch as . . . home addresses of private individuals 'have no manifest bearing on how [the Governor's Office] performed its public duties,' the Attorney General finds that [it] properly redacted this information per KRS 61.878(1)(a)." 17-ORD-154, p. 6; 93-ORD-32; 14-ORD-067; 15-ORD-193; 16-ORD-120; 16-ORD-188; 17-ORD-258.
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
1 By e-mail dated July 8, 2019, Ms. Helms asked the Governor's Office for "a spreadsheet for those Restoration of Civil Rights order [sic] delivered to our office on Friday[.]" The Governor's Office promptly complied, omitting the home addresses of the named individuals whose rights the Governor restored.
2 Also lacking is a citation to any legal authority that prohibits the Secretary of State from obtaining the requested information. The Governor's Office, as the public agency from which records were requested, has the burden of justifying its position; the requester does not. See KRS 61.880(1) and (2)(c).
3 On appeal, Mr. Kuhn acknowledged the "Secretary of State's desire to contact the restorees about registering to vote is laudable." However, the Governor's Office "has already done this."
4 In Ky. Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co. , 824 S.W.2d 324, 327-328 (Ky. 1992), the Kentucky Supreme 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." A determination relative to KRS 61.878(1)(a) turns on whether the offense to personal privacy that would result from disclosure outweighs the benefit to the public, and is an "intrinsically situational" determination that can only be made within a "specific context." Id . See Cape Publications v. City of Louisville , 191 S.W.3d 10, 14 (Ky. App. 2006). Compare Cape Publications v. City of Louisville , 147 S.W.3d 731 (Ky. App. 2003); Ky. New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76 (Ky. 2013).
5 The only exception to this rule is found at KRS 61.874(4)(b), which does not apply here.
6 By letter dated September 18, 2019, Assistant Secretary of State Erica N. Galyon replied to Mr. Kuhn's response, citing KRS 117.025(3)(h)(relating to duties of the State Board of Elections) in support of her agency's position that voter registration data, including residential addresses, is "routinely provided to the public in response to" requests made under the Act. Having reviewed the supplemental correspondence provided on behalf of the Secretary of State's Office, and the cited authorities it referenced, this office finds that none of the information contained therein alters the relevant legal analysis.
Further, "KRS 61.880(2)(a) directs this Office to issue a written decision after reviewing the request and the denial by a public agency. We are not equipped nor do we have the statutory authority to resolve a factual dispute when presented with conflicting narratives on appeal." 17-ORD-088, p. 3; 14-ORD-132. Accordingly, this office makes no finding relative to allegations of prior misuse of contact information or alleged inaccuracies found in the correspondence sent by the Governor's Office to individuals whose rights have been restored. The broader concerns and peripheral issues [raised] are not justiciable in this forum as the Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17.