Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this open records appeal is whether the Boone County Animal Shelter properly relied on KRS 61.878(10(a) in denying Randy Skaggs's April 20, 1998, request for access to an copies of "all of [the shelter's] Kentucky state dog licensees-to be included in [Mr. Skaggs's] mailing database." Mr. Skaggs is the founder and president of The Trixie Foundation, a non-profit, no-kill animal shelter located in Grayson, Kentucky. On behalf of the Boone County Animal Shelter, First Assistant Boone County Attorney C. J. Victor denied Mr. Skaggs's request. Relying on KRS 61.878 (10(a) and 95-ORD-153, incorrectly identified as 95-ORD-153, Mr. Victor explained:
Case precedent for this denial is found in [the cited open records decision], which upheld the denial by the Jefferson County Dept. of Animal Control of a veterinarian's request for a copy of all the current Jefferson County animal licensure records. This decision held that such a disclosure would violate the general public's privacy rights and that privacy right could not be violated as the purpose for the disclosure was unrelated to the fundamental purpose of the Act.
This appeal followed.
In his letter of appeal, Mr. Skaggs argues that "these records should be made public under Kentucky's Open Records Law based upon the 'bright line test' established in Zink v. Commonwealth [sic]." It is his position that since The Trixie Foundation has a noncommercial interest in these records, that interest is superior to the privacy interest of holders of dog licenses. He observes:
Access to the dog licensure records in any Kentucky county will allow The Trixie Foundation to independently verify who [is], and who is not purchasing state dog licenses, as mandated by KRS 258.135, in any or all Kentucky counties. Furthermore, this information can then be forwarded to the responsible county/state governmental agency or office for enforcement, or if necessary, be utilized to expose the lack of enforcement thereof in that particular county; The Trixie Foundation will be able to serve the public as a "watchdog."
Mr. Skaggs's goal is to educate and rally "those individuals that have already proven themselves conscientious and concerned with animal welfare," and to afford them access to alternative philosophies relative to humane animal control and treatment. He asks that the Attorney General reconsider and reverse the holding in 95-ORD-153. For the reasons set forth below, and despite the compelling arguments which Mr. Skaggs advances, we affirm that decision and find that the privacy interest of dog license holders in their names and home addresses outweighs the non-Open Records Act related public interest in disclosure which he articulates.
In 95-ORD-153, this office was asked to determine if the Jefferson County Department of Animal Control properly denied a request for animal licensure records from an attorney representing a veterinarian who wished to obtain the information for commercial purposes. In affirming the department's denial of the request:
[In Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825 (1984), the Kentucky Court of Appeals found] 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:
95-ORD-153, p. 2, 3. In attempting to distinguish this appeal from 95-ORD-153, Mr. Skaggs identifies what he believes to be an open records related public purpose which is served by disclosure of animal licensure records. However, we are not persuaded by his arguments, and therefore do nor depart from our earlier decision.
KRS 258.135(1) requires dog owners "to apply to the dog warden of the county in which [they] reside [] for a license for each dog owned or kept by [them]." Although dog wardens are the Commonwealth's designated agents for the collection of license fees, the statute does not repose on them the duty to ensure full compliance within their respective counties. Their duties are confined to collection of license fees and issuance of licenses, maintenance of records of licenses issued, and the monthly reporting to the Department of Agriculture of licenses issued. KRS 258.135(1); KRS 258.185. Although inspection of animal licensure records would reveal that the dog owner has complied with the licensure requirement found at KRS 258.135(1), "disclosure of the information [Mr. Skaggs] seeks would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny." Zink at 829 (emphasis added). And, as in Zink , "while there may be some merit to [Mr. Skaggs's] assertion that the broad public interest would be served by the dissemination of information [to dog owners regarding the humane treatment of animals] , this cannot be said to further the principal purpose of the Open Records Act. " Id. At the risk of redundancy, we repeat, the purpose "focuses on the citizens' right to be informed as to what their government is doing" and not as to whether other citizens are complying with the dog licensure laws.
Mr. Skaggs misinterprets Zink v. Commonwealth as applied in 95-ORD-153. Neither the Court of Appeals nor this office expressly or impliedly held that any public interest other than a commercial one overrides the privacy interests of private citizens about whom the government maintains personal information. As noted above, the public interest advanced must be an Open Records Act related public interest, and the competing privacy interest must be negligible before this office will reverse an agency's decision to withhold personal information relating to private citizens. And, notwithstanding the fact that The Trixie Foundation has a unique and compelling interest in this information, we remind Mr. Skaggs that resolution of these questions "does not turn on the purposes for which the request for information is made or the identity of the person making the request." Zink at 828. All members of the public enjoy the same right of access to information. If Mr. Skaggs is permitted access to animal licensure records, then "commercial advertisers and solicitors, as well as the merely curious, would have the same access. . . ." Zink at 829. Because the information Mr. Skaggs seeks reveals little or nothing about the Boone County Animal Shelter's operations, and because great weight is assigned to the right of privacy in one's address, we affirm the Animal Shelter's denial of his request and reaffirm our decision in 95-ORD-153.
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.