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 Jefferson County Department of Animal Control's denial of Louanne S. Love's July 10, 1995, request for a copy of "current Jefferson County animal licensure records including name and address of owner and breed and age of dog or cat." Ms. Love, who represents Dr. Damon Campbell, DVM, acknowledges that her client intends to use the information contained in the records for commercial purposes. Specifically, Dr. Campbell wishes to send out mailings to prospective clients.
On behalf of the Department of Animal Control, Jack R. Underwood, Jr., Assistant Jefferson County Attorney, denied Ms. Love's request on July 18, 1995. He explained:
The Department of Animal Control's licensees are licensed solely as private individuals, and not for commercial or professional purposes. Therefore, and pursuant to the privacy exemption of the Open Records Act, it is the position of the Jefferson County Attorney's office that the addresses of Animal Control's licensees are protected from disclosure.
Furthermore, there are specific procedures set forth in KRS 61.960, et. seq. for obtaining a copy of a governmental data base with which you have not complied.
In response to Ms. Love's statement that her client received the same information a few years ago, Mr. Underwood noted that his review disclosed that this has been a long-standing policy, and he is aware of no instance where the Department has authorized release of these records to any individual, including Dr. Campbell.
In her letter of appeal, Ms. Love argues:
I fail to see how a voluntary license, whether it be for a profession, car, boat, gun or dog, can be considered private. Certainly the information contained in applications for animal licenses is personal in the broadest sense (name, address, name of dog, etc.), but no more personal than car license records, which have been accessed by another of my clients.
Relying on OAG 90-142 and OAG 91-202, she maintains that licensure records of all types are open to the public. Alternatively, she asserts that if there is a cognizable privacy interest in the animal licensure records, the Department has not met its burden of proof by establishing that disclosure would constitute a clearly unwarranted invasion of that interest.
The question presented in this appeal is whether the Jefferson County Department of Animal Control violated the provisions of the Open Records Act by denying Ms. Love's request for animal licensure records. For the reasons set forth below, we conclude that the Department properly withheld the requested records. Disclosure of the information contained in these records, under the facts presented, would constitute a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a).
In a recent decision, this office analyzed in considerable depth the propriety of a public agency's invocation of KRS 61.878(1)(a), the privacy exception, to support its denial of a request for public records by a requester whose stated purpose was a commercial one. 95-ORD-151. There, we concluded that in view of the negligible Open Records Act related public interest in disclosure, the agency's reliance on the privacy exception was justified. A copy of that decision is attached hereto, and incorporated by reference. We believe that 95-ORD-151 is dispositive of the instant appeal.
In 95-ORD-151, the Attorney General surveyed the evolution of the privacy exception, culminating in the Court of Appeals' recent decision in
Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825 (1984). Finding that information such as home address, telephone number, and social security number is "generally accepted by society as details in which an individual has at least some expectation of privacy, " Zink at 828, the Zink court focused on the second part of the two part privacy analysis: whether an invasion of this privacy interest is warranted by a superior public interest in disclosure. The court observed:
While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. This is the approach the United States Supreme Court has taken in a similar analysis of requests under the Freedom of Information Act (FOIA). See Dept. Of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 774-75. 109 S. Ct. 1468, 1482-83, 103 L. Ed. 2d 774, 796-97 (1989). As stated in Board of Examiners [of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992)], "the public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." 826 S.W.2d at 328. At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink at 828, 829. In construing the Zink opinion, this office recognized that, "if the nature of the request is unrelated to the fundamental purpose of the Open Records Act, then countervailing interests, such as privacy, must prevail. " 95-ORD-151, p. 9. Thus, what may have been implicit in the law before Zink , is explicit in the law after Zink .
Applying the Zink test to the facts before us, we reach the same conclusion. Through counsel, Dr. Campbell acknowledges that his interest in the requested records is a commercial one, to wit, direct mail solicitation. 1 Thus, the nature of his request is unrelated to the fundamental purpose of the Act, to expose public agency action to public scrutiny. Having recognized the existence of a cognizable privacy interest in information such as home address, telephone number and social security number in Zink , as well as in 95-ORD-151, we find that the privacy interest of pet owners in Jefferson County in this information outweighs the non-Open Records Act related public interest in disclosure. As the court noted in Zink :
One of our most time-honored rights is the right to be left alone, and we fail to see how an individual who happens to have suffered a work- related injury should have that right disturbed merely because of the injury reporting requirements of Chapter 342.
Zink at 829. Extending this reasoning to the present appeal, we see no reason why an individual who has complied with the licensing requirements of Chapter 258, and local ordinances, should have his "right to be left alone" disturbed where there is no articulable public interest in disclosure. Accordingly, we find that the Department of Animal Control properly denied Dr. Campbell's request.
With respect to Ms. Love's argument that animal licensure records have been released in the past, we refer her to the discussion found at pages 9 and 10 of 95-ORD-151. Under the bright line test established in Zink v. Commonwealth , the courts have now established that those portions of public records containing information in which a person has a cognizable privacy interest may be withheld if there is no public interest in disclosure. Whatever policies may have been observed in the past, we believe that after Zink it is clear that a public agency may deny inspection of records containing information of a personal nature if, after weighing the competing public interest, it determines that the latter outweighs the former. When the competing "public" interest is a commercial one, the privacy interest will prevail.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 Contrary to the Department's assertions, KRS 61.960 et seq. no longer governs access to governmental databases. That act was repealed in 1994, and portions of it incorporated into the existing Open Records Act. As amended, the Open Records Act regulates access to public records, regardless of whether they are stored in an electronic database or in hard copy format.