Request By:
Mr. Job D. Turner, III
Attorney
Wallace, Turner and Trigg
404 First National Building
167 West Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
Mr. James W. Gardner, attorney, has appealed to the Attorney General as provided by KRS 61.880(2) the denial of his request to inspect certain public records in the custody of Ms. Shirley Livisay, Section VIII Administrator, Lexington-Fayette Urban County Housing Authority. By letter dated May 8, 1980, we requested Ms. Livisay to send us a copy of the records in question and you, as counsel for the Housing Authority, responded by letter dated May 23, 1980, and sent us the documents requested. The records are described as follows:
1. A copy of the Housing Assistance Payments contract between the PHA and Ms. A. B. Lee, owner of the property located at 550 Jefferson Street, Lexington, Kentucky. This contract is described in 24 CFR 882.102.
2. A copy of the initial inspection report, which was performed by the PHA on 550 Jefferson Street, prior to Ms. Leuna McKee moving into the property.
3. A copy of all inspection reports performed by the PHA in January, 1980 of 550 Jefferson Street, Lexington, Kentucky.
4. A copy of the certificate of family participation as defined in 24 CFR 882.102, stating the terms and conditions for which Leuna McKee would be eligible to participate in the Section 8 program.
We have reviewed the described documents you sent to us and considered the reasons set forth in your letter as to why you believe the records should be withheld from public inspection. After full consideration it is our opinion that the described records are not exempt from mandatory public inspection under the Kentucky Open Records Law, KRS 61.870-61.884.
The only exemption relied on by the agency in denying inspection of the records is KRS 61.878(1)(a) --
"Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
You state that the Section VIII program involves landlords who are willing to rent dwellings to tenants who are certified as being eligible for rent subsidy under the program, and that both the landlords and the tenants have a legitimate desire for privacy concerning the transaction. As to the tenants, you state:
"The information solicited from the tenant, such as Ms. McKee, is very personal in nature as to her financial situation and requires her to disclose income received from all sources including child support and any other assistance including food stamps, etc., which she might be receiving."
We find nothing of that nature in the documents you sent us and, therefore, there is no need in this instance to reach a conclusion as to whether the particulars of a tenant's financial situation may be withheld from the public. We are inclined to agree that they may, but we would point out that KRS 61.878(3) provides that "if any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination." We cannot agree to a carte blanche exemption of all the records pertaining to a Section VIII transaction.
As to the landlords, you state --
"The landlord is also required to submit his property for inspection by the PHA and to comply with the minimum housing standards for eligibility in the program. It is very difficult to persuade a private landlord to subject himself to governmental requirements in order to participate in the Section VIII- existing program. Prospective landlords would be very reluctant to participate in the program if the PHA was under an obligation to disclose the inspection reports and other data which it had as to the landlord to any member of the public under the Freedom of Information Act of Kentucky or the United States."
Our review of the inspection reports of the property at 550 Jefferson Street reveals that the inspection report contains only "yes" or "no" answers as to the various items evaluated by the inspection. We cannot see that the landlord has any overwhelming right of privacy in such an inspection.
The privacy exemption of the Open Records Law applies when there is "a clearly unwarranted invasion of personal privacy. " This wording calls for a weighing of an individual's right of privacy against the public's interest in the transaction involved. We believe that the public's interest in the proper administration of this program outweighs any privacy interest that a landlord may have.
Wine Hobbies USA, Inc. v. U.S. Internal Revenue Service, 502 F.2d 133 (1974).
The practical problem you indicate of persuading a private landlord to subject himself to governmental requirements in order to participate in the program does not move us to conclude that the Section VIII program must be given a blanket exemption from the Open Records Law in the absence of any state or federal statute expressly exempting the program. We assume that there are incentives for landlords to enter the program and that they do not enter it solely from humanatarian and charitable motives.
The Open Records Law takes particular pains as to how the exemptions to the Open Records requirement applies when it states:
"Courts shall take into consideration the basic policy of KRS 61.870-61.884 that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.870-61.884 or otherwise provided for by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.882(4)
It is therefore our opinion that the Lexington-Fayette Urban County Housing Authority is a public agency subject to the Open Records Law and that the records described herein are public records which are not exempt from public inspection and should be made available for inspection by the requester.