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 is before the Attorney General on appeal from the City of Fort Mitchell's partial denial of John Ellenbogen's open records request to inspect the following categories of the City's records:
1.) records containing the full names, the age, the salaries, wages, honoraria, fees, and other payments, which were actually paid to persons working for the City from January 1, 1994 to the present;
2.) records indicating the first and last names of people working for the City, the dates they took office or were employed, dismissed, resigned, promoted, their formal job or position titles, and the particular department, section or branch of the City to which they are assigned for the period January 1, 1993 to the present;
3.) all current ordinances and other laws put into effect by the Council of the City which are applicable to citizens and others within the boundaries of the City; and
4.) all public documents relating to the enforcement of these ordinances and laws since January 1, 1993.
Responding on behalf of the City, Amie M. Wells, City Clerk, advised Mr. Ellenbogen that the following records would be made available for his inspection:
[] Fort Mitchell Code of Ordinances updated to include Ordinances through 1993-7 enacted May 3, 1993;
[] Fort Mitchell Ordinances enacted commencing with Ordinance 1993-8 to the present date;
[] All Municipal Orders enacted by the City Council of the City of Fort Mitchell from January 6, 1992 to the present date;
[] All Executive Orders issued by the Mayor of the City of Fort Mitchell, Kentucky from January 11, 1982 until the present date.
Ms. Wells further explained:
Except as otherwise set forth below, it is believed that the foregoing documents contain the information which you requested. Ordinances, Municipal Orders, and Executive Orders furnished which were enacted or issued prior to the dates referenced in your open records request, are furnished as it is believed some of the information which you requested is included therein.
However, the City denied access to information in its records which disclosed the age of all persons that worked for the City since January 1994. In denying the request for this information, Ms. Wells explained that the age of employees was considered information of a personal nature and its disclosure would be an unwarranted invasion of personal privacy and exempt from disclosure under KRS 61.878(1)(a).
In addition, the City, citing KRS 61.872(6), denied Mr. Ellenbogen's request to inspect all records relating to the enforcement of all ordinances and other laws put in to effect by the City Council since January 1, 1993, on the basis the request was of a general character and overly broad insofar as it requested information on a subject without specifying a certain document.
We are asked to determine if the City's partial denial of Mr. Ellenbogen's request is consistent with the Open Records Act. For the reasons that follow, we conclude that the City's response was proper and in accord with the Act and prior decisions of this office.
The first issue raised in this appeal is the City's denial of Mr. Ellenbogen's request to inspect records showing the age of all persons that worked for the City from January 1, 1994 to the present.
Among the records which may be withheld from inspection are those 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. " From this exclusion, "we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy. "
Beckman v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994).
The public's right to know, the Kentucky Supreme Court observed in
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S. W. 2d 327, 328 (1992), "is premised upon the public's right to expect its agencies properly to execute their statutory functions." "Inspection of records," the Court reasoned, "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." Id. Echoing this view, in
Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the Court of Appeals confirmed that "we . . . determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved." Continuing, the court observed:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] 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 principal purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink , above at 828, 829. If the disputed records contain information of a personal nature, we must determine if the privacy interest in nondisclosure outweighs the public's interest in what the City is doing and how it conducts its affairs. In so doing, we are guided by the knowledge that the Open Records Act "exhibits a general bias favoring disclosure, " Board of Examiners , above at 327, and "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed." KRS 61.871.
Kentucky's courts have recognized that information, such as home addresses, telephone numbers, date of birth, social security numbers, and marital status, "are generally accepted by society as details in which an individual has at least some expectation of privacy." Zink at 628.
In OAG 82-506, we held that the University of Louisville properly relied upon KRS 61.878(1)(a) in denying a reporter's request for information as to the age and address of present and former employees of the University on the basis that this was information of a personal nature that was exempt under that statute.
In OAG 91-202, we held that the Kentucky Board of Nursing could withhold information relating to licensed nurses which was clearly personal in nature, such as age, gender, and race.
Moreover, addressing the privacy interests of public employees, this office, in 98-ORD-138, stated:
Public employees do no forfeit their privacy interest in this personal information by virtue of their public employment. Although they are accountable to the public in the performance of their public duties, they, too, are endowed with the "time-honored right to be left alone" in their private lives. Zink at 829.
Thus, based on the holding in Zink and prior opinions of this office, we conclude that information, such as a person's age, is "generally accepted by society as details in which an individual has at least some expectation of privacy." Zink , at 828.
Against this privacy interest, we must weigh the competing public interest. As noted, the courts have determined that the only relevant public interest to be considered is the extent to which disclosure furthers the underlying purpose of the Open Records Act. That purpose is to permit public oversight of government operations. In our view, a blanket disclosure of the age of all of the City's employees generally sheds little or no light on that agency's performance of its public duties.
In a letter in answer to the City's response to the letter of appeal, Mr. Ellenbogen cited examples of "for instances" as to how knowing the age of particular employees might inform the public as to what the City was doing under a particular set of facts. However, hypothetical examples of how knowing the age of particular employees might inform the public as to what the City is doing under a particular circumstance, is simply too attenuated to overcome the unwarranted invasion of personal privacy which a blanket disclosure of the age of all employees employed by the City from January 1, 1994 to the present would entail. Although there is an unquestionable valid public interest in ferreting out official misconduct, if it in fact exists, such a blanket release of the ages of all the City's employees is unwarranted under the facts of this case.
We therefore conclude that public employees' privacy interest in the nondisclosure of their age is superior to the public's interest in disclosure. Accordingly, the City properly relied upon KRS 61.878(1)(a) in denying Mr. Ellenbogen's blanket request for the disclosure of the age of all persons employed by the City from January 1, 1994 to the present.
The second issue raised in this appeal is the City's denial of Mr. Ellenbogen's request for copies of existing computer files of all ordinances, municipal orders, executive orders and resolutions, which were currently in effect, on 3.5" floppy disks.
In response to this issue, the City stated that it should first be noted that Mr. Ellenbogen, in his November 27, 1998 open records request, asked to inspect all the ordinances, and other laws of the City and did not ask for copies of the records in a computerized format. The City indicated that it made the requested records available for his inspection and he was permitted to make copies of any of the inspected records. The City argues that it fully complied with Mr. Ellenbogen's open records request of November 27, 1998.
We agree. In his open records request of November 27, 1997, Mr. Ellenbogen requested to inspect the ordinances and other laws of the City. The requested records were made available for his inspection. His November 27, 1998 request did not ask for copies of the City's computer files on a 3.5" floppy disk. Thus, since Mr. Ellenbogen's original request was not couched in these terms, this issue is not properly before this office in the instant appeal.
We do note, however, for future reference, that KRS 61.874(1) states that when copies of records are requested, the custodian "may require a written request and advanced payment of the prescribed fee." KRS 61.874(2) provides:
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
If nonexempt records exist in both standard electronic and standard hard copy format, the public agency must permit inspection of and copying in the format requested by the requester. 95-ORD-12.
The third issue raised in the appeal is the City's denial of Mr. Ellenbogen's request to inspect all records relating to the enforcement by the City of all its ordinances, municipal orders, executive orders and resolutions put into effect by the City Council from January 1, 1993 to the present. In denying this request, the City explained:
Your request to review all public documents since January 1, 1993, relating to the enforcement of all of the Ordinances and Municipal Orders of the City is denied based upon provisions of KRS 61.872(6). Your request is of a general character and overly broad insofar as it requests information on a subject without specifying a certain document. Files pertaining to the enforcement of the Ordinances and other laws of the City are located in various departments of the City, including daily logs of police officers and involve many topics, i.e., collection of taxes; enforcement of licenses, traffic control matters, housing code matters, zoning matters, nuisance matters and others. The police department alone issues approximately 1700 Citations per year which are not broken down or indexed in relation to the Ordinance or other laws of the City of Fort Mitchell. In addition, the records of the City of Fort Mitchell contain information some of which is exempt and some of which is nonexempt from inspection under the Kentucky Open Records Statute. The production thereof places an unreasonable burden on the City.
This office has previously held that an agency does not have to honor blanket requests for all nonexempt records in a file if the requester has not described or identified the specific documents he wishes to inspect. OAG 92-56.
In 94-ORD-12, the Attorney General articulated a standard for determining whether a requester had described the records sought with sufficient precision. At page 3 of that decision, we observed:
The purpose and intent of the Open Records Act is to permit the "free and open examination of public records. " KRS 61.871. However, this right of access is not absolute. As a precondition to inspection, a requesting party must identify with "reasonable particularity" those documents which he or she wishes to review. OAG 89-81; OAG 91-58; OAG 92-56. Thus, if a public agency is to provide access to public documents, the requester must identify them with sufficient clarity to enable the agency to locate and make them available. If the requester cannot describe the documents he wishes to inspect with sufficient specificity, there is no requirement that the public agency conduct a search for such documents.
In the instant situation, Mr. Ellenbogen presented a blanket request for all records relating to the enforcement by the City of all its ordinances, municipal orders, executive orders and resolutions enacted since January 1, 1993. The request does not identify with "reasonable particularity" any records he wishes to review to enable the City to identify and locate the records he seeks and to make them available for inspection. 94-ORD-12.
Under these circumstances, the City should not be required to search through its enforcement records in various departments, covering a variety of enforcement topics, some of which may require separating or masking exempted information, in an attempt to locate and make available records which may or may not be the documents Mr. Ellenbogen seeks to inspect. Accordingly, we conclude the City was not required to honor the request and properly denied it. OAG 92-56.
Mr. Ellenbogen should reformulate his request by describing the specific documents or categories of records he is seeking in order for the City to locate and make the them available for his inspection. In this regard, we urge the parties to work in a spirit of cooperation toward identifying and locating the records Mr. Ellenbogen seeks to inspect.
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.