Request By:
Ms. Virginia W. Gregg
Corporate Counsel
Lexington-Fayette Urban County Government
Department of Law
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; D. Brent Irvin, Assistant Attorney General
By letters of February 7, 1990, and May 23, 1990, to this office, Mr. Arthur Joe Sullivan and Mr. Henry C. McClanahan, pursuant to KRS 68.880(2), have appealed your agency's response to their requests to inspect certain documents regarding Mr. Dewey Crowe's qualifications to take the licensure examination for journeyman electrician. Your agency supplied the requested documents but, relying on KRS 61.878(1)(a) and KRS 61.878(1)(g), masked the name and address of Mr. Crowe's former employer on the grounds that a disclosure of this information would constitute a clearly unwarranted invasion of the personal privacy of the licensee and his former employer and because the information was divulged in correspondence from a private individual.
FINDINGS IN BRIEF
The Lexington-Fayette Urban County Government's reliance on KRS 61.878(1)(a) to deny a request to inspect documents containing the name and address of an electrical licensee's former employer, under whom the licensee served his apprenticeship, was not justified under the circumstances of the facts presented, where the licensee was required to work under a licensed contractor a certain number of years in order to be eligible to take a qualifying licensure examination. The public's right to this information outweighs the licensee's and licensee's former employer's right to privacy. Neither may the government agency exclude the document, in reliance on KRS 61.878(1)(g), as information contained in correspondence from private individuals, where the agency relied on the information in permitting an applicant to take the licensure exam. Therefore, the Lexington-Fayette Urban Government or its electrical examining board did not act consistent with the Kentucky Open Records law under the facts presented.
FACTUAL BACKGROUND
The Lexington-Fayette Urban County Government has, pursuant to authority granted it in KRS 227.450 to 227.800, enacted certain ordinances relating to the licensing of electricians, which establish and define electrical licensure classifications and which establish an examining board of electricians. See Lexington-Fayette Urban County Government Code of Ordinances, Chapter 5, Article IV, Division 2. These ordinances establish a classification of "journeyman electrician. " Under these ordinances, a person desiring a journeyman electrician's license must either graduate from a state-recognized school for electricians or gain four years of experience working under the supervision of a licensed electrical contractor. Next, he or she must pass a qualifying examination administered by an examining board of electricians. The board requires that each applicant present either proof of graduation or proof of work experience with a licensed contractor, before it allows him or her to take the exam.
In 1989 the Lexington-Fayette Urban County Government hired Mr. Dewey Crowe as an electrical code enforcement officer. By all accounts he seemed well qualified for the position. Mr. Crowe is a graduate of Transylvania University. Mr. Crowe presented a letter from an electrical contractor indicating that he had performed electric wiring and maintenance work at the apprentice level from 1976 to 1984. He passed the electrical journeyman examination with the highest score ever reported to Lexington's Examining Board of Electricians. The Examining Board licensed Mr. Crowe in 1989.
Beginning in November of 1989, Mr. Sullivan and Mr. McClanahan, who are brothers-in-law, began writing letters to various city officials questioning Mr. Crowe's qualifications to obtain his journeyman license. Pursuant to the Kentucky Open Records Act, they requested to inspect public records relating to Mr. Crowe's qualifications to sit for the qualifying exam and also sought to inspect his application for the position of Code Enforcement Officer.
We are advised that city officials were well acquainted with Mr. Sullivan and Mr. McClanahan because of their prior disputes with the city. Mr. McClanahan is a licensed electrical contractor. Mr. Sullivan is a journeyman electrician who has insisted he should be granted an electrical contractor's license without taking the qualifying exam based on his experience. Mr. McClanahan and Mr. Sullivan have appeared before the Lexington-Fayette Urban County Council, they have engaged in heated discussions with members of the Licensing Board of Electricians, the mayor and members of the city's legal staff.
In response to the numerous open records requests, the city supplied Mr. Sullivan and Mr. McClanahan every requested document which was available. However pursuant to KRS 61.878(1)(a), which allows the exclusion of ". . . information of a personal nature where public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, " the city masked certain information contained in the documents. Specifically, the city masked from Mr. Crowe's application for code enforcement officer, his social security number, his home address and telephone number, his date of birth, who is to be contacted in case of emergency, his salary received for various jobs, and the names of his former employers, although details of work experience and dates involved were included. The city masked from the documentation concerning Mr. Crowe's journeyman electrician's examination, the actual score on the exam, and masked from his letter from an electricial contractor showing apprentice level work experience, the name and address of the contractor and the company which employed him.
You indicated in your June 5, 1990 letter to Mr. McClanahan, "There is nothing in this situation that demonstrates that the public's interest in gaining access to Mr. Crowe's former employer/ supervisor name(s) and address(es) is greater than Mr. Crowe and the former employer's/supervisor's right to privacy about such matters." You further indicated, "The above document(s) were also masked based on KRS 61.878(1)(g) which allows exclusion of preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. "
Mr. Sullivan has appealed this partial denial to the Attorney General by letter dated February 7, 1990, in which he stated:
I want to know the name of the electrical contractor who [Mr. Crowe] gained his five years of experiences within the electrical field. Also which town this experience was obtained in. I also would like to see all documentation that was given on the job application for obtaining the job that he presently has with the city of Lexington, Kentucky, as Code Enforcement Officer III.
The issue on appeal is whether the Lexington-Fayette Urban County Government's reliance on KRS 61.880(1)(a) and KRS 61.880(1)(g) was justified under the facts presented for an opinion.
OPINION OF THE ATTORNEY GENERAL
KRS 61.878 excludes certain records from the provisions of the Open Records Act, except upon court order. Included among the records excluded are:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. [KRS 61.878(1)(a)].
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency. [KRS 61.878(1)(g)].
KRS 61.878(4) provides:
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 shall first discuss KRS 61.878(1)(a). In OAG 76-716, a leading early Attorney General's opinion concerning the privacy exemption, we said that determining whether or not the disclosure of information would constitute a clearly unwarranted invasion of privacy compels a balancing of interests of the public's right to know and the rights of persons to privacy. We said that in deciding whether a document is exempt, it is the nature of the document which is controlling and not who is requesting to inspect it, or for what purpose. Courts in other jurisdictions, interpreting the similarly worded exemption in the Federal Freedom of Information Act, have said a court should balance four factors: (1) the plaintiff's interest in disclosure, (2) the public interest in disclosure, (3) the degree of invasion of personal privacy, and (4) the availability of alternative means of obtaining information.
Multnomah County Medical Society v. Scott, 825 F.2d 1410 (9th Cir. 1987).
The leading Kentucky case discussing an individual's right of privacy is
Board of Education v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981). In that case the Urban County Human Rights Commission brought an action to compel the Fayette County Board of Education to disclose county school systems personnel files for purpose of permitting investigation of an employee's sex discrimination claim. In discussing the right of privacy the Court of Appeals said:
[The right of privacy] is based on the right of an individual to be left alone, to be free from unwarranted publicity and to live without unwarranted interference by the public in matters with which it is not necessarily concerned. However, the right is not absolute. The rule defining the extent of the right is based on the premise that the standard by which the act is measured is that of a reasonable man. Since there is no hard and fast definition of the right, each case must turn on its own facts. Such a rule necessitates a balancing of the interests of the two parties in the litigation, as well as those of the public.
Id. at 110 quoting
Perry v. Moskins Stores Inc., Ky. 249 S.W.2d 812 (1952). The court declined to adopt a balancing test, tilted toward disclosure, as some federal courts have done. Instead the court held that in Kentucky the appropriate test is, "balancing the interests of the parties as well as those of the public measured by the standard of a reasonable man. " Board of Education, supra at 111.
In past opinions we have said public agencies may sanitize records to delete the home addresses of a university's alumni association [OAG 90-60]; the home addresses of state employees [OAG 76-716]; and the home addresses of members in a voluntary organization which was partially supported by a government agency [OAG 80-432]. On the other hand, we have required the disclosure of the home addresses of occupational licensees in the absence of a work address since the purpose of the licensure requirements is to protect the public. See, OAG 84-93 (concerning city occupational licenses) , and OAG 84-51 (involving Racing Commission licensee's address).
In OAG 89-90, a copy of which is enclosed, our office considered the privacy exception in the context of a request by a newspaper reporter to inspect employment applications, resumes, and records of educational qualifications of a school district's employees. In that opinion we said that school employees' right of privacy did not outweigh the public's right of inspection. We reasoned:
One does not typically work in secret, such that one's prior work experience would be reasonably termed information of a personal nature, [the] release of which would constitute a clearly unwarranted invasion of personal privacy.
Turning to the case at hand, and balancing the licensee's and his former employer's right of privacy against the right of the public to be informed about the functions of government, as measured by the standards of a reasonable man, we hold that under the facts of this case the public's right to be informed outweighs the privacy interest of the licensee and his former employer to keep the former employer's name and address confidential.
In a democracy the public has a substantial interest in having public records available for public scrutiny. The General Assembly has indicated, ". . . The basic policy of [the Open Records Act is] that free and open examination of public records is in the public interest and the exceptions provided . . . shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.882(4). The need for disclosure is particularly strong where the records are from a licensing body, established to protect the public, as in the instant case. The public also has a substantial interest in seeing that a government agency enforces its statutes and ordinances in an evenhanded manner. Where, as in this case, a local government establishes minimum qualifications that a person must achieve before he is eligible to take a licensure examination, we are of the opinion the public should be provided access to enough information to verify that these qualifications have been met. The public should not be required to simply take the government's word that minimum qualifications were satisfied, in a given case. Thus, the need for disclosure, under the facts presented, is substantial.
On the other side of the balance, as we observed in OAG 89-90, "one does not typically work in secret, such that one's prior work experience would be reasonably termed information of a personal nature [the] release of which would constitute a clearly unwarranted invasion of personal privacy. " We view the privacy interests in the name and address of one's former employer as minimal. We note that federal courts interpreting the Federal Freedom of Information Act have reached similar results. See
Core v. U.S. Postal Service, 730 F.2d 946 (4th Cir. 1984), holding that the public's interest in the competence of government employees outweighed the privacy interests of the employee, and thus the disclosure of work experience of a successful applicant for a postal service position did not constitute a clear unwarranted invasion of personal privacy.
We do not imply that all information obtained by a licensing agency about a potential licensee should be available for inspection. Some data, such as test scores or confidential letters of recommendation, may remain private. However, as we have said, the public's interest in verifying that licensees meet educational or work experience requirements outweighs the minimal privacy interests of a licensee in the name and address of his former employer.
We understand how an agency may be reluctant to turn over the name and address of a licensee's former employer to persons it believes will use the information for an improper purpose, such as harassing the former employer. However, we are reluctant to endorse the premise that some members of the public are less deserving of access to public information than others. If an agency has good reason to believe turning over public documents to someone would create a dangerous situation, and access to the record should be denied, such a weighty decision should be decided in a court of law by a judge, not by our office in an Attorney General's opinion, under the privacy exemption. We decline to consider the likelihood that a requester of public records will abuse his right of access to those records as part of the privacy exception.
As to Mr. Sullivan's request to inspect all documentation that was given on Mr. Dewey Crowe's job application for obtaining his job as a code enforcement officer, we hold that masking the information other than the names and addresses of former employers was justified. We have previously said a government employer may block out such personal information as the employee's home address, social security number, phone number and the like. See OAGs 89-17 and 90-19.
As to your contention that KRS 61.878(1)(g), concerning preliminary correspondence with private individuals, permits withholding the letter from Mr. Crowe's former employer, we disagree.
In
City of Louisville v. The Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982), a newspaper reporter sought to inspect all records relating to complaints against a certain police officer, the Court of Appeals held that the complaint that spawned the investigation must be disclosed because the public has a right to know what complaints have been made and the final action by the Chief upon them. In
Kentucky State Board of Licensure v. The Courier-Journal and Louisville Times Company, Ky.App., 663 S.W.2d 953 (1983), the Court of Appeals made it clear that it made no difference if the complaint was characterized as a formal public complaint or a private individual complaint. In either case, since final actions stem from the complaints, they are incorporated as part of the final determination and are not exempt under KRS 61.878 (1)(g) or (h).
In OAG 90-7 we said a contractor lost any character he had as a private individual when he corresponded with a public agency regarding administration of his contract with that agency, and thus correspondence from the contractor was not exempt from disclosure. We reasoned that one who contracts with a governmental agency must accept certain necessary consequences of involvement in public affairs, including the risk of closer public scrutiny. In OAGs 90-13 and 79-69 we have distinguished voluntary surveys given to government agencies, which did not have to be disclosed, as private correspondence, from involuntary reports which must be available for inspection. In OAG 89-31 we said bids on government contracts cannot be considered correspondence with private individuals.
These cases and opinions demonstrate that not all writings from individuals to a government agency can be considered correspondence with private individuals. Writings from private citizens to government agencies are not considered correspondence from private citizens where an agency is expected to rely on the correspondence to take some action, such as take a disciplinary action against a licensee, or enter into a government contract based on bids. In each instance disclosure is mandatory upon request, after the final governmental action. We view verification of an applicant's qualifications to take a licensure examination as following this same rule.
By analogy, the letter from Mr. Crowe's former employer verifying his former experience is like a complaint that spawns an investigation by an agency. This letter spawned a decision to permit Mr. Crowe to take his licensure examination. The facts in the letter were relied upon by the electrical examination board in performing its duty to permit only qualified individuals to sit for the exam.
In summary, we do not view a letter verifying an electrician's qualifications to sit for a licensure examination as having been made with an expectation of privacy, nor do we view it as correspondence with a private individual.
It is therefore the opinion of the Attorney General that the Urban County Government's reliance on KRS 61.878 (1)(a) or 61.878(1)(g) to delete the name and address of the licensed electrical contractor under whom Mr. Crowe served his apprenticeship was not justified. The privacy interests involved do not outweigh the public's right to the information requested. Therefore, the release of the contractor's name and address would not constitute a clearly unwarranted invasion of personal privacy, under the facts presented for an opinion. However, the Urban County Government was justified in masking certain personal information from Mr. Crowe's application for employment.
You should promptly advise Mr. Sullivan and Mr. McClanahan that they may inspect the certification from Mr. Crowe's former employer, or in the alternative, you may forward copies of this document to them, leaving the name and address of his former employer unmasked.
Pursuant to KRS 61.880 (5), the Lexington-Fayette Urban County Government and Mr. Sullivan have a right to appeal the findings of this opinion to the Fayette Circuit Court.
As required by statute, a copy of this opinion is being sent to Mr. Arthur Joe Sullivan and Mr. Henry C. McClanahan.