23-ORD-342
December 18, 2023
In re: Armando Arrastia/Energy and Environment Cabinet
Summary: The Energy and Environment Cabinet (“the Cabinet”) did
not violate the Open Records Act (“the Act”) when it redacted private
home addresses, telephone numbers, and email addresses under
KRS 61.878(1)(a).
Open Records Decision
On November 17, 2023, Armando Arrastia (“Appellant”) requested copies of
sign-in sheets completed by members of the public attending a meeting concerning
an application to modify a mining permit. The Appellant indicated he wanted “all
information provided by participants (name, address, email, phone, etc.).” In a timely
response, the Cabinet provided the requested copies but advised the Appellant that
“[c]ertain information (personal addresses, telephone number, & email addresses)
contained within the documents has been redacted in accordance with
KRS 61.878(1)(a), as disclosure would constitute an unwarranted invasion of
personal privacy.” This appeal followed.
KRS 61.878(1)(a) exempts “[p]ublic records containing information of a
personal nature where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.” In reviewing an agency’s denial of an open
records request based on the personal privacy exemption, the courts and the Attorney
General balance the public’s right to know what is happening in government against
the personal privacy interest at stake in the record. See Zink v. Commonwealth, Dep’t
of Workers’ Claims, 902 S.W.2d 825, 828 (Ky. App. 1994). However, the Supreme
Court of Kentucky has held that certain categories of information about private
individuals provide minimal insight into governmental affairs and may be
categorically redacted under KRS 61.878(1)(a). Ky. New Era, Inc. v. City of
Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013). These categories include home addresses,personal phone numbers, driver’s license numbers, and Social Security numbers. Id.
Personal email addresses may likewise be redacted under KRS 61.878(1)(a), as they
ordinarily shed no light on government conduct. See, e.g., 16-ORD-205. However, in
exceptional circumstances where disclosure of the information would substantially
advance the interests of the Act, the public interest may be found to outweigh the
privacy interest. See, e.g., 22-ORD-037 (finding residential addresses of candidates
for office and their cosigners were directly relevant to whether election officials were
properly performing their duties to prevent voter fraud).
The Appellant makes four arguments in support of his appeal. First, he claims
the Cabinet’s response was defective because it only stated the invasion of personal
privacy was “unwarranted,” rather than “clearly unwarranted.” However, when a
public agency denies a request for records, KRS 61.880(1) only requires the agency to
state the exception on which it relies and explain how it applies to the withheld
records. It does not require the agency to quote the exact statutory language. Because
the redacted information is subject to KRS 61.878(1)(a), under the reasoning of
Kentucky New Era, the Cabinet’s response was sufficient.
Next, the Appellant argues, disclosure would not constitute a clearly
unwarranted invasion of personal privacy because the individuals provided the
information “voluntarily” when they filled out the sign-in sheets. But
KRS 61.878(1)(a) is not limited to circumstances in which individuals provide
personal information under compulsion.1 The question, rather, is whether the
information sheds any substantial light on how the agency performs its duties. Under
Kentucky New Era, the personal addresses, phone numbers, and email addresses of
private citizens do not.
The Appellant also claims the home addresses must be disclosed because some
of the individuals stated their addresses while speaking at a public meeting and
because some of the addresses “were included in the public disclosure of the permit
application.” However, personal information in public records “is no less private
simply because that information is available someplace.” Zink, 902 S.W.2d at 828.
The Act “is not meant to turn the state’s agencies into clearing houses of personal
information about private citizens readily available to anyone upon request.” Ky. New
Era, 415 S.W.3d at 89. Thus, the fact that the information the Appellant seeks could
be found elsewhere does not override the personal privacy interest in that information
under KRS 61.878(1)(a).
Finally, the Appellant claims he needs the personal contact information of the
citizens who attended the public meeting because “there is a greater public interest
in [his] being able to communicate with dozens if not hundreds of neighbors who will
1
In contrast, KRS 61.878(1)(c) is expressly limited to “[r]ecords confidentially disclosed to an
agency or required by an agency to be disclosed to it.” KRS 61.878(1)(a) contains no such limitation.be adversely affected if the permit application is approved.” In short, the Appellant
seeks a list of mailing addresses, phone numbers, and email addresses of persons he
wishes to contact. However, the Appellant’s interest in contacting private citizens is
not the public interest in disclosure contemplated by the Act. “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, 902 S.W.2d at 829
(emphasis added). Although the Appellant is free to communicate his opinions
regarding the permit application to anyone he chooses, the Act “does not entitle [him]
to a ready-made subscriber list.” 14-ORD-197. Accordingly, the Cabinet did not
violate the Act when it redacted personal information under KRS 61.878(1)(a).
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#538
Distributed to:
Mr. Armando Arrastia
John Z. Garvey, Esq.
Ms. Jessica L. Sutton