Request By:
Honorable Gail Kaukas
Assistant Director of Law
City of Louisville Department of Law
Room 200, City Hall
Louisville, Kentucky 40202-2771
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
As you are aware, Mr. Louis Cohen has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in the custody of the City of Louisville Department of Housing.
Specifically, Mr. Cohen hand delivered a written request to the Department of Housing on July 26, 1984. In this request Mr. Cohen indicated that he desired to inspect and copy a complaint received by the Department of Housing on June 6, 1984 in regard to property owned by Mr. Abe Cohen situated at 1923 West Madison Street in Louisville. Mr. Cohen further requested to inspect any other documents in the possession of the City of Louisville regarding this property. (Mr. Cohen did receive a Vacant Housing Inspection Report showing inspections on June 12, 1984 and July 2, 1984; a deed book reference sheet; an Order To Board by the Department of Housing against Cohen Realty dated June 13, 1984; and a Vacant Structure Inspection form showing inspections on October 26, 1982 and November 14, 1983.)
By letter dated August 1, 1984, Mr. Cohen stated that he had not received a written response from the Department of Housing regarding his request for inspection. This office contacted the Department of Housing requesting a copy of any response sent to Mr. Cohen. You contacted this office by phone on August 22, 1984 and sent a written response on August 23, 1984.
In response to Mr. Cohen's request to inspect what he believes is a "larger file" on the property in question, you indicate that a search by the Department of Housing staff members failed to reveal anything more than what Mr. Cohen has already inspected, with the exception of the citizen's complaint.
In response to Mr. Cohen's request to inspect the citizen's complaint, you state that the complaint consists of a Department staff member's handwritten notes taken over the telephone. It is Department policy to refuse to release the names of those who provide information out of fear of harassment of those individuals. For that reason, you are denying inspection of the complainant's name. Additionally, you are also denying inspection of the complaint in its entirety under KRS 61.878(1)(g) (which exempts from public inspection preliminary drafts, notes, and correspondence with private individuals) because the final action (a complaint against Cohen Realty) taken by the Department of Housing was not based on the staff person's notes but on an inspection of the property by the Department).
OPINION OF THE ATTORNEY GENERAL
For the reasons stated below, it is the opinion of the Attorney General that the citizen's complaint should be open to public inspection. However, the identity of the complainant is exempt from public disclosure pursuant to KRS 61.878(1)(a).
First, the records of the City of Louisville Department of Housing are public records as defined by KRS 61.870. The records are therefore open to public inspection upon request unless specifically exempted by KRS 61.878.
Regarding the citizen's complaint, the applicable exemptions are KRS 61.878(1)(g) and (h) which exclude from public inspection (except upon court order) :
(g) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.
(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
The June 6, 1984 citizen's complaint received by the Department of Housing pertaining to 1923 West Madison Street falls under these exceptions as a "preliminary" record until the Department of Housing takes final action. Once final action is taken, any complaint which spawned the investigation becomes incorporated into the final action and is at that time open to public inspection.
City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982);
Kentucky State Board of Medical Licensure v. Courier-Journal & Louisville Times Co., Ky.App., 663 S.W.2d 953 (1983). This is also true for any reports, letters, or memoranda made a part of the record.
One of the documents received by Mr. Cohen was an Order To Board 1923 West Madison Street, filed by the Department of Housing on June 13, 1984, against Cohen Realty. Among other things, the Order stated that failure to close the structure within ten days would authorize the Department of Housing to close the structure with costs to the property owner. The Vacant Housing Inspection Report, also received by Mr. Cohen, indicates that the property was inspected June 12, 1984 (as stated in the Order To Board) and July 2, 1984. The July 2, 1984 inspection indicated a reinspection date of December 15, 1984.
You state that the Order To Board taken by the Department of Housing against Cohen Realty constitutes final action with regard to 1923 Madison Street. Under City of Louisville and Kentucky State Board of Medical Licensure, supra, any complaint which spawned the investigation and final action becomes incorporated into the final action and is at that time open to public inspection. Therefore, the citizen's complaint made June 6, 1984 has become incorporated into the Order To Board and has been open to public inspection since the Order date. This is authorized according to the cited authority above even though, as you assert, the Order To Board was based on an actual inspection of the property and not the complaint, because the Vacant Housing Inspection Report indicates that the June 12, 1984 inspection was made as a result of the June 6, 1984 complaint. The citizen's complaint therefore "spawned" the inspection and subsequent Order To Board. The complaint is thus open to inspection.
Regarding the complainant's identity, however, it is our opinion that this information is exempt from public inspection (except upon court order) pursuant to KRS 61.878(1)(a) which excludes:
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
There are two reasons supporting this decision. First, although in City of Louisville and Kentucky State Board of Medical Licensure, supra, the Court of Appeals stated that complaints spawning an investigation are open once final action is taken, neither opinion discussed the release of the complainant's name. This question apparently was not considered by the Court.
Second, the standard applied to the KRS 61.878(1)(a) privacy exemption is a balancing of interests. Specifically, the balance is between the protection of an individual's private affairs from unnecessary public scrutiny against the preservation of the public's right to governmental information. In this case, the nature of the withheld information (the complainant's name) obviously identifies the complainant and disclosure could possibly harm the complainant through harassment. Additionally, the complainant's identity is protected by the Department's policy of keeping complainants' names confidential. This policy is illustrative of the chilling effect which could occur if this information was open to public inspection.
It is therefore our opinion that disclosure of the complainant's name would be an unwarranted invasion of personal privacy which is not outweighed by the public's right to governmental information. Release of the complainant's name would effectively chill any reporting of violations to the Department of Housing. Release of the complaint with the complainant's name deleted would effectively protect the complainant while allowing the party against whom the complaint is made access to information concerning the alleged violation which resulted in agency action. Pursuant to KRS 61.878(3), it is therefore our opinion that the citizen's complaint should be released (since final action has taken place) but the name of the complainant should be deleted pursuant to KRS 61.878(1)(a).
As directed by statute, a copy of this opinion is being sent to the requestor who may initiate further proceedings pursuant to KRS 61.880(5).