00-ORD-172
September 8, 2000
In re: Dezi Jackson/Kentucky Transportation Cabinet
Open Records Decision
The question presented in this appeal is whether the Kentucky Transportation Cabinet violated the Open Records Act in responding to Dezi Jackson’s request for copies of the “sign-in list for the Public Meeting #2 concerning the possible routes for the Crestwood Bypass connecting I 265 – Ky 329” and the “petition which was turned in by the Peewee Valley & Floydsburg residents, containing 1000 signatures.”
The Cabinet provided Ms. Jackson with copies of the requested documents. However, under authority of KRS 61.878(1)(a), it redacted the home addresses and telephone numbers of each person signing either document.
In her letter of appeal to this office, Ms. Jackson acknowledged receipt of the requested documents, but appeals the agency’s action in deleting the home addresses from the documents.
After receipt of Ms. Jackson’s letter of appeal and the Notification to Agency of Receipt of Open Records Appeal, Todd Shipp, Assistant General Counsel, on behalf of the Cabinet, provided this office with a response to the issues raised in the appeal. Elaborating on the Cabinet’s original response, Mr. Shipp stated, in pertinent part:
As noted in our responses the deletion of the addresses and telephone numbers of the individuals was based on a twofold reason. The first explanation of denial is based on KRS 61.878(1)(a), wherein public records containing information of a personal nature where public disclosure would constitute a clearly unwarranted invasion of personal privacy. 95-ORD-151 has established that a release of this type of information would constitute a clearly unwarranted invasion of personal privacy.
Looking at both documents, each had home addresses and telephone numbers. The petition was an unsolicited correspondence from those individuals to this Cabinet, expressing their point of view. To share their home addresses with individuals who may have opposing points of view or use them to contact them directly would place a serious chill upon public involvement in the government’s process. The second was the sign-in sheet at the public forum. This document is solely used as a means for this Cabinet to track the public interest in the affected area and to provide notification, if warranted, in the future. Both are a form of correspondence with individuals protected from release at KRS 61.878(1)(i) and in addition to the expectation of privacy associated with type of information. To disclose this type of information would violate the basic trust these individuals placed in us for our Agencies files and would potentially put a chill on the Cabinet’s ability to reach out to the public for its input.
To facilitate this office’s review of this appeal, we requested that the Cabinet provide us with a copy of the records in question for an in camera review of the contents. The documents were not disclosed to other parties and have since been destroyed. KRS 61.880(2)(c); 40 KAR 1:030, Section 3.
We are ask to determine whether the deletion of the home addresses from the petition and sign-in sheet constituted a violation of the Open Records Act. For the reasons that follow, we conclude that the deletions did not constitute a violation of the Act.
KRS 61.878(1)(a) excludes from public inspection:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
The courts have developed a two part analysis for determining the propriety of an agency’s invocation of this exception. In Zink v. Commonwealth of Kentucky, Ky.App., 902 SW2d 825, 828 (1995), 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 SW2d 324, (1992):
[O]ur 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.
The Zink court noted that in weighing the public interest in disclosure against the privacy interests involved, "the only relevant public interest to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act." Zink at 828. “The purpose of disclosure,” the court continued, “focuses on the citizens’ right to be informed as to what their government is doing.” Id. Disclosure of records that do not subject agency action to public scrutiny may not be required where there is a competing privacy interest.
The courts and this office have consistently recognized that a person’s home address is information in which a person has a cognizable privacy interest. Zink; 98-ORD-187; 95-ORD-151. 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 the petition or sign-in sheet.
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.
The signers of the petition voiced their opposition to routes 2 & 3 of the “Old Henry-Crestwood Bypass.” The petition and the names and number of people signing it could serve to inform the public, at a minimum, that there was opposition to a proposed by-pass and perhaps whether the agency factored this fact into its deliberations over selecting a proposed highway route. The sign-in sheet denotes persons attending a public meeting held by the Cabinet. As noted above, Ms. Jackson was provided a copy of both the petition and the sign-in sheet, but with the home addresses of the signers redacted.
Providing access to the home addresses of people that signed the petition would reveal little or nothing about the conduct or functioning of the Transportation Cabinet, particularly where its validity is not drawn into question. The same would go for the sign-in sheet. Thus, we conclude the privacy interests in their home addresses outweigh the negligible Open Records Act related public interest in disclosure of the home addresses and that disclosure would constitute a “clearly unwarranted invasion of personal privacy” under KRS 61.878(1)(a).
Accordingly, we find that the Cabinet did not violate the Open Records Act in denying Ms. Jackson’s request for the home addresses set out in the petition and the sign-in sheet and could properly exercise its prerogative to redact the exempted information from the documents. KRS 61.878(4). Because the Cabinet’s reliance upon KRS 61.878(1)(a) is dispositive of this appeal, we need not address other reasons set out as a basis for the partial denial of inspection of the requested records.
We do note in passing that KRS 61.840, in part, provides that no person may be required to identify himself in order to attend a public meeting. A person’s place of residence is, in itself, a personal identifier. 98-OMD-44. Thus, a person attending a public meeting could not be required to sign a sign-in sheet.
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.
Albert B. Chandler III
Attorney General
James M. Ringo
Assistant Attorney General
#473
Distributed to:
Dezi Jackson
5507 Pearce Way
Crestwood KY 40014
Ed Roberts
Commissioner, Department of Administrative Services
Transportation Cabinet
State Office Building
Frankfort KY 40601
Todd Shipp
Office of Legal Counsel
Transportation Cabinet
State Office Building
Frankfort KY 40601