Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the University of Louisville's denial of Dr. Rose Dagirmanjian's August 31, 1992, request to inspect documents described as:
1. A copy of the original request by Ben Hershberg and/or Courier-Journal, made June 27, 1991, to inspect the report prepared by the chairman and vice chairman of the University's Board of Trustees and all supporting documents, including staff and senate surveys regarding the Board's evaluation of President Donald Swain.
2. A copy of the response of the archivist and/or administration to the above request by Ben Hershberg.
In a letter dated September 4, 1992, Mr. William J. Morison, Director of the University Archives and Records Center, denied Dr. Dagirmanjian's request. Relying on KRS 61.878(1)(a), he explained:
I consider a request submitted to the University under the Kentucky Open Records Act to be a private communication. My response restates the text of the request. I believe open records requests and responses thereto 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) [)]. Of course you may direct your request to Mr. Hershberg, but as official custodian of the records of the University of Louisville, I cannot approve it.
He therefore declined to release Mr. Hershberg's request and the University's written response to Dr. Dagirmanjian.
In her letter of appeal to this office, Dr. Dagirmanjian argues that the University's position is inconsistent with earlier opinions of this Office. In support of her argument, she cites OAG 91-130, in which we held that a public agency improperly denied a request for the agency's written response to an open records request. She notes that in OAG 91-130, we rejected the agency's argument that the document could be withheld under the privacy exception because it contained such information as the identity of the requester. It is Dr. Dagirmanjian's position that this logic should be extended to the present appeal.
We are asked to determine if the University of Louisville violated the Open Records Act in denying Dr. Dagirmanjian's request under KRS 61.878(1)(a). For the reasons set forth below, we conclude that the University improperly denied her request.
The Kentucky Supreme Court recently enunciated a clear test for analyzing the propriety of an agency's invocation of the privacy exception. In Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992), the court observed:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.
Those "antagonistic interests" are characterized as the public's interest in knowing whether its agencies are properly executing their statutory functions and its public servants are serving the public, and the individual's or individuals' interest in the disclosure of records which touch upon the intimate or personal features of their lives. Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Board of Examiners, supra at 328.
In OAG 91-130, a copy of which is attached, this Office recognized that disclosure of an agency's written response to an open records request did not constitute a clearly unwarranted invasion of personal privacy. As a tangential matter, we noted that invocation of the privacy exception was improper in spite of the fact that release of the agency's written response would necessarily reveal the identity of the private individual who made the request. At page four of that opinion, we observed:
[T]he identity of Mr. Keith Schillo is already known to Dr. Wilson in view of her explicit identification of Mr. Schillo in her open records request. . . . Keith Schillo forfeited whatever privacy interests he may have had when he submitted an application to your agency to inspect public records. Keith Schillo knew or should have known that your agency was required to respond to his request in writing pursuant to KRS 61.880(1). He has no reasonable expectation that the agency's response to his request would not be disclosed to others upon request. . . . [W]hatever privacy interest that Keith Schillo may arguably have is outweighed by the public's right to be informed of public agencies' disposition of open records requests.
Under the facts presented in that case, we rejected the agency's invocation of KRS 61.878(1)(h), 1 which exempts "[C]orrespondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency, " and KRS 61.878(1)(a), the privacy exemption, to authorize nondisclosure of the agency's written response to an open records request.
We have examined the documents which give rise to this appeal. They consist of a one paragraph letter from Mr. Ben Z. Hershberg to Mr. Thomas Lyons, University Counsel, on Courier-Journal letterhead, in which Mr. Hershberg requests copies of the evaluation report and supporting documents, and a two paragraph response on University letterhead in which Mr. Morison, as official custodian of records, denies the request. Mr. Morison quotes liberally from Mr. Hershberg's request and cites the specific exceptions authorizing nondisclosure of the records. Nothing in this correspondence could be deemed to touch on the intimate or personal features of Mr. Hershberg's life. The University has asserted no other privacy interest which might be implicated by release of the documents, and we can think of none.
The public's interest in release of the documents is substantial. Among the statutory duties imposed on all public agencies is the duty to comply with the Open Records Act in responding to requests for public records. Inspection of the disputed records in this appeal will reveal whether the agency's disposition of open records requests is consistent with the spirit and the letter of the Open Records Act. Since the privacy interests implicated in this appeal are minimal, we believe that the public's interest in disclosure is superior.
We do not intend to establish a rule of general application in so holding. Such a rule might have a chilling effect on open records requests. We can envision situations where a requester's privacy interest may outweigh the public's interest in disclosure. As the Court admonished in Board of Psychologists, supra, at p. 328, "[T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Our holding is limited to the facts presented in this appeal.
The University of Louisville may challenge this decision by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
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