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 appeal is whether the Kentucky Commission on Human Rights properly relied on KRS 61.878(1)(a) and KRS 344.250(6) in denying Greg Munson's October 1, 1998, request for copies of "all complaints officially filed and assigned KCHR docket numbers during the inclusive period September 1, 1998 through September 30, 1998." For the reasons that follow, we find that the Commission's reliance of these provisions was misplaced. We further find that the complaints, although subject to public inspection when final action has been taken on them, may be withheld pursuant to KRS 61.878(1)(i) and (j) until final action is taken.
In a letter dated October 7, 1998, Beverly L. Watts, the Commission's Executive Director, acknowledged receipt of Mr. Munson's request, and indicated that he could expect a response "on or before October 21, 1998." On October 20, Ms. Watts formally denied Mr. Munson's request. She advised:
KRS 344.250(6) provides that, "It is unlawful for a commissioner or employee of the commission to make public with respect to a particular person without his consent information obtained by the commission pursuant to its authority under this section except as reasonably necessary to the conduct of a proceeding under this chapter."
KRS 61.878(1)(a) exempts from public disclosure "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
Disclosure of the information requested would be an unwarranted invasion of privacy and would not serve the purpose of the Open Records Act.
Dissatisfied with the Commission's response, Mr. Munson initiated this open records appeal.
In a follow-up letter to this office, Ms. Watts elaborated on the Commission's position. She explained that the complaints filed with the Commission allege "discrimination in employment, public accommodations, housing, and financial transactions [and] contain very personal information about the complainant, including his home address, telephone number, date of birth and depending on the discrimination alleged, information about the complainant's race, religion, national origin, disability, sex, age, and familial status." "Clearly," Ms. Watts argued, "according to KRS 344.250(6), this information shall remain confidential within the Commission. . . ."
Ms. Watts offered additional support for the Commission's reliance on KRS 61.878(1)(a), reiterating that the complaints contain "very personal information" the disclosure of which would result in "the embarrassment and humiliation of the complainant." She relied on the decision of the
Kentucky Court of Appeals in Zink v. Commonwealth, Ky.App., 902 S.W.2d 825 (1994), noting the similarity of the information which the records at issue in Zink , and the records at issue in this appeal, contain. Ms. Watts observed:
The attorney in Zink had requested the information for purposes of soliciting the injured workers for legal representation. In this situation, Mr. Munson, a former employee of the Kentucky Commission on Human Rights, is also an attorney seeking to solicit [the Commission's] complainants for legal representation.
In Zink , the Kentucky Court of Appeals ruled that the information about injured workers contained in injury report forms was exempt from disclosure under the Kentucky Open Records Act as a "clearly unwarranted invasion of personal privacy" under KRS 61.878(1)(a).
By analogy, Ms. Watts argued:
Disclosure of such immensely personal information about [the Commission's] complainants cannot begin to purport to inform Mr. Munson about the activities of the Commission. Unquestionably, a [Commission] complainant has an expectation of privacy in the information submitted in his complaint of discrimination.
It is the Commission's position that, as in Zink , a "complainant's expectation of privacy in such personal information outweighs any public purpose Mr. Munson may articulate as a basis to gain access to that information."
We are not persuaded that the presence of certain information on the complaint which is arguable protected by the privacy exception authorizes nondisclosure of the entire record after final action has been taken. Nor are we persuaded that KRS 344.250(6) authorizes nondisclosure of the complaint after final action has been taken. It is, instead, our view that KRS 61.878(4) requires the Commission to redact, or mask, the excepted information and make the nonexcepted information available for inspection when the matter has been finally concluded. Until such time as final action has been taken on the complaints, the Commission may, however, properly deny Mr. Munson access to them.
This position finds support in a line of opinions of this office dating back to the mid-eighties. For example, in OAG 85-5 the Attorney General addressed the propriety of the Lexington-Fayette Urban County Government Human Rights Commission's denial of a request to inspect complaints which it had received in the preceding year. At page 3 of that opinion, we held that "if a proceeding has been instituted [under KRS Chapter 344] what is available for public inspection is dependent upon the level at which the proceeding has progressed." Continuing, we observed:
If the proceeding is at the level dealt with in KRS 344.200 and results in a dismissal of the complaint or the entering of a conciliation agreement, then only the order of dismissal or the terms of the conciliation agreement are subject to public inspection. See the authorities cited in OAG 84-376 relative to the purpose of federal nondisclosure provisions where a conciliation process is involved. If the proceeding has progressed to the point of a hearing under KRS 344.210, then the hearing transcript required by KRS 344.210(7), evidence introduced at the hearing, the complaint which would normally be introduced at the hearing, and the subsequent decision of the Commission would all be subject to public inspection under the Open Records Law.
OAG 85-5, p. 3.
In OAG 88-55, we went one step further and declared:
We cannot see how allegations raised by a complainant in the complaint come under [KRS 344.200(4)].
Nor do we believe that KRS 344.250(6) applies. That statute in general allows the Commission to investigate a complaint and to require the periodic filing of certain information required by the Commission unrelated to a specific complaint. An allegation made in a complaint is not "information obtained by the commission pursuant to its authority under this section." KRS 344.250(6). . . .
In City of Louisville v. Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982) the Court of Appeals held that complaints against policemen were not exempt from inspection once final action had been taken. Similarly here, it is our opinion that the complaints themselves are not exempt from the Open Records Law once final action has been taken.
OAG 88-55, p. 2. We believe that OAG 88-5 is controlling. For purposes of absolute clarity, we add that final action includes the decision to take no action, or the dismissal, of the complaint. Accordingly, we find that the Human Rights Commission cannot rely on KRS 344.250(6) to justify its denial of a request for complaints received by the Commission after final action has been taken on the complaints. However, the Commission may, under authority of KRS 61.878(1)(i) and (j), as construed in City of Louisville , above, and OAGs 88-55 and 85-5, withhold complaints which it receives until such time as final action is taken.
We reject the Commission's argument that KRS 61.878(1)(a), coupled with the decision of the Court of Appeals in Zink , above, authorizes nondisclosure of the complaints in their entirety. Although the Commission accurately states the rule of law set forth in that decision, it interprets that rule of law too broadly. In Zink , the court was asked to determine if the Labor Cabinet violated the Open Records Act in partially denying a request to inspect a report of injury form filed with the Cabinet pursuant to the Kentucky Workers' Compensation Act. The form contained such personal information as the injured employee's name, home address, telephone number, date of birth, social security number, marital status, wage rate, and number of dependents. The Labor Cabinet agreed to provide the requester with a computer print-out containing the name, date of injury, county of injury, injury code and part of body injured, and days of work missed for each of the reported injured workers, as well as a key to the injury codes. The requester accepted the print-out, "but did not waive his initial request for full inspection. " Zink at 829. The court therefore held:
Because the privacy rights of the injured employees in personal details appearing on the [report of injury] forms substantially outweigh the negligible Open Records Act related public interest in disclosure, we conclude that disclosure would constitute a "clearly unwarranted invasion of personal privacy" under KRS 61.878(1)(a).
Zink at 829, 830.
The information which Mr. Zink sought consisted of the injured employees' home addresses, telephone numbers, date of birth, social security number, marital status, wage rate, and number of dependents. It is significant, for our purposes, to note that the Cabinet had already furnished him with a print-out containing the names, dates of injury, counties of injury, injury code, and days of work missed of each injured worker. This information was directly relevant to the public's assessment of whether the Cabinet was properly executing its statutory functions. Zink at 828. The remaining personal information "reveal[ed] little or nothing about [the Cabinet's] own conduct." Zink at 829.
In the appeal before us, the Commission advances a claim for wholesale nondisclosure of the complaints it receives, arguing that "disclosure of such immensely personal information about [Commission] complainants cannot begin to purport to inform Mr. Munson about the activities of the Commission." We disagree. Among the Commission's statutory powers and duties is the duty "to receive and investigate complaints of discrimination." KRS 344.180(3). This duty lies at the very heart of its legislative charter. Inspection of the complaints which it receives, and the final actions taken upon those complaints, will "reveal whether [the Commission is] indeed serving the public, and the policy of disclosure [will] provide[] impetus for [the Commission] steadfastly to pursue the public good." Board of Examiners at 328 cited in Zink at 829.
It is the opinion of this office that the Zink decision does not authorize wholesale nondisclosure of the complaints the Commission receives, but does authorize partial nondisclosure of the complaints. 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 nonexcepted material available for examination.
In Zink , the Court of Appeals recognized that the purpose for which the Open Records Act was enacted would not be furthered "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 829. The court specifically identified home addresses, telephone numbers, social security numbers, and income as those items of information in which the public has no legitimate interest.
We believe that the reasoning in Zink can be extended to the present appeal. The complaints at issue contain the complainant's name, home address, telephone number, date of birth, basis of discrimination, and a narrative of discriminatory treatment. Under Zink , the Commission may properly redact the complainant's home address and telephone number, as well as his date of birth (unless he has alleged age discrimination) since the public interest supporting disclosure is negligible. The Commission is, however, obligated to release the complainant's name, 1 the basis of discrimination, and the narrative of discriminatory treatment. This position is entirely consistent with our holdings in OAG 85-5 and OAG 88-55. The Commission has presented no facts or legal arguments that would persuade us to depart from this view.
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 Although the Commission cannot adopt a policy of blanket nondisclosure relative to the release of complainants' names, it may, where circumstances warrant it in doing so, withhold the identities of complainants. For example, if the complainant has specifically requested anonymity, or has expressed particular concerns about retaliation or harassment, the Commission may withhold his name, pursuant to KRS 61.878(1)(a), as a clearly unwarranted invasion of personal privacy. In such cases, the Commission must articulate the basis for its denial in terms of the requirements of the statute, and "provide particular and detailed information" supporting its partial denial. Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 850 (1996).