Request By:
Mr. Roy V. Thurman, Director
Division of Occupations and Professions
Executive Department for Finance and
Administration
Capitol Annex Building
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
This opinion is in response to your memorandum to Assistant Attorney General C. Davis Clauss, dated March 7, 1979.
The Attorney General takes the following position in regard to the Kentucky Open Records Law, KRS 61.870-61.884:
(1) The custodian of the records of a public agency may allow inspection of all the records in his custody regardless of whether the records may be exempt by their nature under the provisions of KRS 61.878 unless the records come under the exemptions provided by KRS 61.878(1)(i)(j) (public records or information the disclosure of which is prohibited by federal law or regulation and public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly).
(2) The administrative head of a public agency or the custodian of the records of a public agency may deny inspection under all of the other exemptions in the statute except (i)(j) if he chooses to do so but he is not mandatorily required to withhold the records from inspection.
(3) The purpose for the inspection of public records and how the information obtained from public records will be used is not material under the Open Records Law. The only material factor in invoking an exception is the nature of the record, and even though an agency is justified in invoking the exception, it is not required to do so. For example, if the document requested is a preliminary draft, note or correspondence with private individual, it may be withheld from public inspection under exemption (g) or it may be made available at the discretion of the administrative head.
(4) Any public agency can prepare a list from its files and give or sell the list to the public even though the list contains private information about individuals, such as the home address. On the other hand, any agency may adopt a policy against releasing private information and against giving or selling lists to the public.
(5) Kentucky has no statute which gives general protection to the privacy of individuals in regard to public records.
The opinions expressed above are in apparent conflict with a portion of OAG 76-717, which is hereby modified accordingly.
ANALYSIS OF THE LAW
KRS 61.878 begins as follows:
"(1) The following public records are excluded from the application of KRS 61.870-61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction: . . ."
There follows a list of 10 exemptions, (a) thru (j). The question is whether this statute mandatorily directs that all records which fall under the exemptions be withheld from the public. We believe that it does not.
In 73 Am.Jur.2d Statutes §§ 19-27 there is a discussion of mandatory and directory statutes. This treatise states that a statute which uses the word "shall" or "must" is usually considered to be mandatory in its effect while the word "may" is usually understood to be permissive or directory, but this rule is not absolute.
"There are cases in which words of a statute, which are generally regarded as mandatory, are nevertheless given a directory or permissive meaning, in order to give effect to the legislative intent. Thus, a legislative intention that the word 'shall' is to be construed as permissive may appear from the spirit or purpose of the act, or from the connection in which it is used or the relation into which it is put with other parts of the same statute." 73 Am.Jur.2d Statutes § 25.
We believe that when KRS 61.878(1) says "the following public records are excluded . . . and shall be subject to inspection only upon order of a court . . .", that the legislative intent was permissive and not mandatory. The exemptions are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody. An official does not have to be concerned with whether a record should be released or not, but only concerned with whether he may justifiably withhold a record from public examination.
One reason we believe that the exemptions are a shield and not a shackle is that the statutes provide no penalty for releasing exempted documents. Penalties are provided for only two things: (1) willfully concealing or destroying any record with the intent to violate the Open Records Law is a Class A misdemeanor, KRS 61.991(2); (2) the circuit court may impose a penalty of up to $25 a day and reasonable attorney's fees against an official or an agency which has willfully withheld from public inspection documents which are not exempt under the Open Records Law, KRS 61.882(5).
The safest course for a public official who has public records in his custody is always to allow inspection of the records unless some statute, other than the Open Records Statute, makes the records confidential and orders that they not be released. Public officials and employees have enough to do without scrutinizing records to see if they are exempt under the Open Records Law. They should only have to consider the exemptions in KRS 61.878 when for some reason they desire to withhold the inspection of a record. For example, when we issued OAG 76-717 the State Department of Personnel desired to maintain a policy that would keep the personnel records of state employees as private as the Open Records Law would permit. We believed then, and still do, that the home addresses, social security numbers, marital status, and information on the employment application was not of public concern and was of such a personal nature that it could be withheld from public disclosure. However, in that opinion we went too far in implying that KRS 61.878 forbids the release of such information. It is not for the Attorney General to tell the custodian of records what documents they may not release, but to tell them what documents they must release. When an official claims a document is exempt from the Open Records requirement and the requester appeals to the Attorney General under KRS 61.780, it is for the Attorney General to give an opinion as to whether the exemption applies to the particular record.
It must be kept in mind that Kentucky has no statute protecting the privacy rights of individuals in public records. Such a statute was proposed in Senate Bill 59 in the 1978 General Assembly, but it did not pass. The bill would have amended the Open Records Law to:
(1) eliminate computers and data processing from the terms 'custodian' and 'official custodian;
(2) define 'personal information' and 'personal record' and regulate the handling of same;
(3) Section 4 would have created a new statute on the privacy of personal information and when and to whom it may be revealed;
(4) regulate the collecting of personal information;
(5) regulate disclosures of personal information to another public agency;
(6) allow the subject of personal information to see records pertaining to him, and to challenge and correct them.
The fact that Senate Bill 59 was introduced demonstrates that the Kentucky Open Records Law does not provide a mandatory restriction on the release of public records.
RECORDS OF LICENSEES
As Director of the Division of Occupations and Professions, you are concerned with which records and list may be released to the public by licensing boards. You state as follows:
"Names and addresses obtained from public records for gainful purposes, either to be sold to sales and advertising agencies, to solicit the purchase of a product or the affiliation with an association seems unwarranted. Even in cases that appear to be warranted, what guarantee does the administrator have that second or third parties will not be involved?
"My second concern is that some consistency should be attempted throughout state government on this matter involving public service and public trust. It is very difficult to refuse such a listing to a firm that has just obtained a similar list from another agency or board."
We have issued several opinions to licensing boards on this question, e.g., OAG 78-497 to the Kentucky Board of Nursing, OAG 78-132 to the Kentucky Real Estate Commission. Our conclusion is that the licensing of occupations and professions is in the public interest and that the public is entitled to inspect records pertaining to licensing, but that a licensing board can exercise its discretion as to whether to release all of the information in its files or to withhold some of the information under one of the exemptions in KRS 61.878. The public is entitled to the names and business addresses of licensees, but if a licensing board wants to withhold the home addresses and other private data about a licensee, it may do so under exemption (a). The use to be made of licensing information is of no concern to the licensing board or to the Attorney General.
The compiling of a list to be released to the public is a matter within the discretion of the licensing board. We have often said that an agency is not required to compile a list when such a list does not already exist. However, it is sometimes more expedient for an agency to compile a list for distribution than to allow members of the public to come into the office and compile their own list from the agency's records. One advantage is that the agency may sell the list and include the cost in the sale price of the staff required to prepare the list. Another advantage is that the agency may eliminate any material which it thinks should be withheld from public disclosure under one of the exemptions in the Open Records Law. For example, the agency may eliminate matters which it thinks are an unwarranted invasion of personal pricavy and which it, therefore, wants to withhold from public disclosure. A third advantage is that a list usually satisfies the desires of the requesters and is more convenient to their purposes than a list which the requesters compile themselves by inspection of the public records. For example, the Kentucky Nurses Association wants only a list of newly licensed nurses in order that it may issue an invitation to the new licensees to join its association. (OAG 78-497.) On the other hand, an agency which desires not to facilitate what it considers to be the sending of "junk mail" may adopt a policy against preparing and issuing a list of licensees. An agency which does not wish to make it convenient for a requester to send out "junk mail" may let the requester compile his own list by an examination of agency records. This is a matter of policy for the agency to decide.
Your desire that there should be a consistent policy throughout state government in regard to the issuing of lists of licensees addresses itself to the discretion of the General Assembly as to whether such a policy should be mandated.
You state that you believe the administrative regulation 200 KAR 1:020 "does provide very emphatically that certain information of a personal nature be held confidential. " Since said regulation is merely a rewrite of the statute, KRS 61.878, what we have said in this opinion regarding the statute applies equally to the regulation.
OAG 76-717 is modified in accordance with this opinion.