Request By:
Charles D. Wickliffe, Esq.
General Counsel
Finance and Administration Cabinet
Capitol Annex
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Bill Bartleman has appealed to the Attorney General pursuant to KRS 61.880 your denial of a portion of his request to inspect and copy telephone records in the custody of your Cabinet. He describes the documents in question as telephone records pertaining to the Legislative Research Commission for January of 1986 relative to calls made from certain designated state telephone numbers. His request was dated February 11, 1986, and was apparently filed with the Division of Telecommunications of the Finance and Administration Cabinet on February 12, 1986.
In a letter dated February 14, 1986, Mr. Danny Shearer, Deputy Commissioner of the Department for Facilities Management, advised Mr. Bartleman that information relating to his request should be available in approximately ten days. However, it was not until March 7, 1986, that Mr. Bartleman received any of the information he had requested.
In your letter to Mr. Bartleman, dated March 7, 1986, you stated that a compilation of the records maintained by the Division of Telecommunications relative to the telephone numbers listed in his request had been prepared and was handed to him on that date by Mr. Danny Shearer. The numbers of the telephones called from the state telephone numbers listed in the request to inspect records was deleted pursuant to KRS 61.878(3). This information was withheld in accordance with KRS 61.878(1) (a) as being information of a public nature where public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
Mr. Bartleman's letter of appeal to this office states in part that the Cabinet's response was not made in accordance with the provisions of KRS 61.880(1). He denies that the information deleted is information of a personal nature the disclosure of which involves an unwarranted invasion of personal privacy pursuant to KRS 61.878(1) (a).
On March 21, 1986, the undersigned Assistant Attorney General talked by telephone with Mr. Danny Shearer who advised that the K.A.T.S. printouts of telephone calls from state numbers reveal the following information: the telephone number from which the call was made; the date and time of the call; the location (city and state) called; the telephone number called; the number of minutes the call consumed; the cost of the call. The K.A.T.S. printouts do not state the names of persons or businesses called. All of the information on the K.A.T.S. printouts was furnished to Mr. Bartleman except the telephone numbers to which the state calls were made.
OPINION OF THE ATTORNEY GENERAL
DRS 61.880(1) provides in part that a public aqency, upon a request for records made under the Open Records Act, shall determine within three days (excepting Saturdays, Sundays, and holidays) after the receipt of the request whether to comply with the request and shall notify in writing the person making the request, within the three day period, of its decision.
The public agency did not follow the requirements of KRS 61.880(1). While Mr. Shearer's letter was sent within the three day time period, that letter did not state that a portion of the material would be deleted. Furthermore, the material that was ultimately provided was not furnished within the time frame set forth in the letter and no adequate written response was subsequently provided relative to the delay in providing the documents requested. Your letter of March 7, 1986, pertaining to the documents that were being supplied and setting forth why some information was being deleted, was sent well after the time frame set forth in Mr. Shearer's letter and well after the three day time period in which the public agency is to communicate its written decision as to whether or not the requested documents will be made available for public inspection.
Included among those public records which are excluded from the provisions of the Open Records Act and subject to inspection only upon the order of a court of competent jurisdiction are those set forth in KRS 61.878(1) (a) pertaining to "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
The statutory provision cited above seeks to protect an individual against an unwarranted invasion of personal privacy. Involved here are the telephone numbers of unnamed individuals, groups or companies who have been called, presumably by public officials, on telephones purchased or leased by a public agency with public funds. Since public officials or employees are calling on telephones of a public agency at the public's expense it is presumed, or at least it is hoped, that some kind of public business is being conducted or some kind of public service is being rendered.
While it is true that it should not be too difficult to ascertain what person, group or business has been called by the public agency once the telephone number has been obtained, it seems to us that this is a price that must be paid by citizens and residents in a free and democratic society. As a general proposition the public's business must be conducted in public. If a person has been called by a public agency he may have either requested something of the public agency or he may have done something affecting the public.
In our opinion it would be an improper use of the privacy exemption of the Open Records Act to allow a public agency to refuse to release telephone numbers called by personnel of a public agency on public telephones merely by invoking the privacy exemption without any supporting explanation or reasons as to how the release of such telephone numbers will adversely affect the persons, group or businesses to whom the numbers belong.
There undoubtedly will be instances when there is a legitimate need by a public agency to keep telephone number s it has called confidential. We think, however, that when those situations arise the burden should be on the public agency to justify, under the Open Records Act or some other legislative enactment, why the record with the telephone numbers should not be released. Upon a proper showing, pursuant to an exception to public inspection under the Open Records Act, the public agency probably can refrain from disclosing the telephone number involved. For example, a proper showing would include conversations involving law enforcement agencies and confidential witnesses or victims, which would be exempt from disclosure under the Open Records Act.
This office has concluded in numerous opinions interpreting the Open Records Act that a public agency should not release the home addresses and telephone numbers of its employees. See, for example, OAG 76-717 and OAG 85-109, copies of which are enclosed. The privacy exemption applies to a public employee's personal life but not to what he does while carrying on the public's business at public expense. Likewise, where a private person brings himself within the public domain as a result of his contacts, dealings and involvement with a public agency and the public's business he cannot rely upon a blanket application of the privacy principle to shield those activities.
It is therefore the opinion of the Attorney General that the public agency, in handling this particular request to inspect the telephone records of another public agency in its custody, improperly deleted from the records made available for public inspection all the telephone numbers called from the state telephone numbers mentioned in the request to inspect. There may be situations where the exceptions to public inspection under the Open Records Act can be legitimately applied. However, the public agency in this situation cannot under a blanket application of the privacy exemption of the Open Records Act refuse to make available all telephone numbers called from designated state telephone numbers when such numbers called appear on the K.A.T.S. printouts of telephone calls.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Bill Bartleman. If you or the public agency decide not to comply with the conclusions set forth in this opinion, proceedings challenging this opinion may be instituted in circuit court pursuant to KRS 61.880(5).