Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Independence's denial of the October 6, 1998 open records request of Benjamin L. Corder, D.C., for copies of motor vehicle accident reports without certain information, such as the home addresses of individuals named in the reports, redacted.
By letter dated October 10, 1998, Frank A. Wichmann, counsel for the City, denied Dr. Corder's request for copies of accident reports without the home addresses masked. In his letter, Mr. Wichmann explained:
We are enclosing copies of the motor vehicle accident reports from August 1, 1998 through October 6, 1998. The reports for April, May, June and July will be sent to you, as soon as I can get them copied from the Police Department, which will be no later than October 17, 1998.
Pursuant to the authority of KRS 61.878, and the interpretation thereof in OAG 89-76 and Zink v. Com., Ky.App, 902 S.W.2d 825, it is the policy of the City of Independence to delete from these reports information of a personal nature, where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, such as social security numbers, operator's license numbers, dates of birth and addresses.
On October 23, 1998, Robert A. Winter, Jr., counsel for Dr. Corder, appealed the City's denial to this office. In his letter of appeal, Mr. Winter argued, in part, that this office had repeatedly and uniformly held that members of the public have the right, under the Open Records Act, to obtain copies of motor vehicle accident reports. He further stated that, although OAG 89-76 held that law enforcement authorities had the discretion to redact social security numbers and operators' numbers, it did not rule on the issue of home addresses. He argued that there was no authority to support the City's adverse action on Dr. Corder's requests and asked this office render a decision compelling the City to provide copies of accident reports unredacted, except for the discretionary sanitization of social security and operators' license numbers.
Along with his letter of appeal, Mr. Winter enclosed a copy of an September 8, 1998 letter from Mr. Wichmann, on behalf of the City, in which Mr. Wichmann disagreed with Dr. Corder's position. In that letter, Mr. Wichmann, in summary, argued KRS 61.878(1)(a) excludes from the application of the Open Records Act public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. He argued
Zink v. Com., Ky.App., 902 S.W.2d 825 (1994), identified information such as marital status, number of dependents, wage rate, social security number, home address and telephone number as generally accepted by society as details in which an individual has at least some expectation of privacy; that Ky. OAG 89-76 held that a police department may exercise its prerogative to delete exempted material contained in the police accident reports, provided there is consistent application of this prerogative without regard to the individual requesting the inspection; and thus the City could delete information, such as home addresses, as long as it consistently applied its policy to redact such information.
We are asked to determine if the City of Independence violated provisions of the Open Records Act in denying Dr. Corder's request for copies of accident reports without information redacted, particularly the home addresses of persons named in the report. For the reasons that follow, we conclude that the City's response was consistent with the Act and prior decisions of this office.
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection, are those records described in KRS 61.878(1)(a) as, "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " OAG 91-94.
The courts have developed a two part analysis for determining the propriety of an agency's invocation of KRS 61.878(1)(a). In
Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, Ky. App., 902 S.W.2d 825, 828 (1994), the Court of Appeals adopted the test first set forth by the
Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, Ky., 826 S.W.2d 324 (1992):
Our analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is, we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination entails a "comparative weighing of antagonistic interests" in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. Id. at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
After 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, 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 to 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.
Dr. Corder was provided with copies of the accident reports, but with the social security numbers, operator's license numbers, dates of birth and addresses of the individuals named in the reports masked. In this appeal, he is seeking copies of the accident reports without the home addresses redacted.
This office has long recognized that "uniform police traffic accident reports" prepared by law enforcement officers, pursuant to KRS 189.635, are not confidential, and are open records under the Open Records Act and are open to the public. 98-ORD-29; OAG 89-76, citing OAGs 83-53, 80-210, and 76-478.
The status of these opinions is somewhat clouded by the controversy surrounding the 1994 amendments to KRS 189.635. Those amendments, which made accident reports confidential except as to parties to the accident, their insurers, their attorneys, and news gathering organizations, were declared unconstitutional in Stephen Amelkin D.C. v Commissioner, Department of State Police , Civil Action No. 3:94 CV-360-A (W.D. Ky. June 4, 1996), appeal docketed, No. 96-5942 (6th Cir. July 2, 1996). The Attorney General is currently enjoined from enforcing these amendments and other 1994 amendments in the Open Records Act distinguishing between commercial and noncommercial use of public records. Thus, pending resolution of the appeal in the Sixth Circuit, the authorities cited remain valid.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the City. Mr. Wichmann provided this office with a response to the issues raised in the appeal. In his response, Mr. Wichmann stated that since Dr. Corder's request was for the commercial purpose of the solicitation of chiropractic patients, the City's policy of redacting personal information from the accident reports was authorized by KRS 61.878(1)(a) as interpreted by Zink and prior decisions of this office.
Since we are enjoined from enforcing provisions of the Open Records Act which distinguish between whether requested public records are to be used for a commercial or noncommercial purpose, we will not address the purpose for which the requested accident reports will be used. Instead we will address only the issue as to whether the redacted information was properly excluded under an exception to disclosure under KRS 61.878(1).
We have recognized that accident reports do contain information of a personal or confidential nature which may be exempt from disclosure under KRS 61.878(1)(a) and the public agency may mask out or delete the information which is personal or confidential and make the nonexcepted material available for inspection. KRS 61.878(4); OAG 89-76.
Moreover, because the exemptions contained in KRS 61.878(1) (a) through (j) are permissive, the decision to remove or redact excepted material rests within the sound discretion of the public agency. OAG 89-76; 97-ORD-12.
This office has consistently recognized that a person's home address is information in which a person has a cognizable privacy interest. 92-ORD-1549. Thus, following the direction of Zink and prior decisions of this office, we conclude that a person has at least some expectation of privacy in the disclosure of his or her home address on an accident report.
Having determined that a person's home address is information of a personal nature, we proceed to a determination whether disclosure of this information constitutes a clearly unwarranted invasion of personal privacy. This determination turns on whether the privacy interests implicated are superior to the public interest in disclosure. 96-ORD-123.
As noted above, the public's right to know under the Open Records Act is premised upon its right to expect its agencies properly to execute their statutory functions. Providing access to the home addresses of the people named in an accident report would reveal little or nothing about either the conduct or functioning of the City or the police department in its investigation and reporting of the details of a traffic accident, such as a description of the accident, its location, time of occurrence, weather or road conditions, and the names of the parties involved.
Because we conclude the privacy interests of persons named in the accident reports in their home addresses outweigh the negligible Open Records Act related public interest in disclosure, it is the decision of this office that disclosure of the home addresses would constitute a "clearly unwarranted invasion of personal privacy" under KRS 61.878(1)(a).
Accordingly, we conclude that the City properly denied Dr. Corder's request for the home addresses set out in the accident reports and may properly exercise its prerogative to redact exempted information from the accident reports, provided there is consistent application of this prerogative without regard to the individual requesting inspection. KRS 61.878(4); OAG 89-76.
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.