03-ORD-080 | KOGC

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 Athletic Commission violated the Open Records Act in partially denying Bart McQueary's February 20, 2003, request for "the complete 2003 wrestling license application for Angie Wilkinson." 1 For the reasons that follow, we find that the Commission's partial denial of Mr. McQueary's request was procedurally deficient but, with the single exception noted below, substantively correct.

On March 10, 2003, Commission Executive Director Nancy L. Black provided Mr. McQueary with a copy of Ms. Wilkinson's "Application for License as a Wrestler, " explaining that "[i]n accordance with the provisions of the Kentucky Open Records Act, records containing information of a personal or confidential nature [had] been redacted. " 2 Shortly thereafter, Mr. McQueary initiated this appeal challenging the Commission's redaction of Ms. Wilkinson's date of birth, weight, and height, and maintaining that "these are vital aspects of the wrestling profession, and . . . are not elements associated with identity theft . . . ."

In supplemental correspondence directed to this office following commencement of Mr. McQueary's appeal, Commission attorney Michael Plumley elaborated on his client's position. He noted that Mr. McQueary's original request, dated February 20, did not reach the Commission until March 3, 2003. In defense of the Commission's decision to redact the applicant's date of birth, height, and weight before releasing the requested application, Mr. Plumley argued:

It has long been held that items such as "marital status, number of dependents, wage rate, social security number, home address and telephone number" are similar to date of birth, height and weight information which are common identifiers of an individual. Zink v. Commonwealth Dept. of Workers' Claims, Ky.App., 902 S.W.2d 825, 828 (1994). This protection also covers date of birth and other information about private citizens which has nothing to do with the public actions of an agency or expenditure of public funds. Heinz [sic] v. Commonwealth Dept. of Treasury, Ky.App., 41 S.W.3d 872, 874 (2001). Height and weight are also such personal statistics which individuals have some expectation of privacy about, and the Commission properly redacted these items in this matter.

Mr. Plumley urged the Attorney General to affirm the Commission's position.

The Commission's response to Mr. McQueary's request did not comply in all particulars with KRS 61.880(1) and was therefore procedurally deficient. That statute establishes guidelines for agency response to an open records request and provides as follows:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

Mr. Plumley indicates that Mr. McQueary's request did not reach the Commission until March 3, but does not indicate why the Commission's response was dated, and presumably issued on, March 10, two days after the three business day deadline had passed. Moreover, both Ms. Black and Mr. Plumley recite the language of KRS 61.878(1)(a), but fail to cite the exception itself. "The language of the statute directing agency action is exact." Edmondson v. Alig, Ky.App., 926 S.W.2d 856, 858 (1996). It requires a timely written response, and, if access to all or any portion of the requested records is denied, a statement of the specific exception authorizing nondisclosure and a brief explanation of how the exception applies to the record withheld. 3 To the extent of these omissions, the Commission's response was deficient.

Turning to the substantive issue in this appeal, we find that in weighing the competing interests, the Commission properly concluded that Ms. Wilkinson's privacy interest in her height and weight is superior to the public's interest in insuring that the Commission is properly discharging its duty to direct, manage, and control wrestling matches and the licensure of persons who participate in wrestling matches. Based on the reasoning set forth below, we do not reach the same conclusion with respect to Ms. Wilkinson's date of birth. We therefore affirm the Commission's reliance on KRS 61.878(1)(a) as the basis for the partial denial of Mr. McQueary's request with the exception of the licensee's date of birth.

KRS 61.878(1)(a) excludes from the mandatory disclosure provisions 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. " 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. " Beckham 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." Board of Examiners, above. 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 then the disputed records contain information of a personal nature, we must determine if the privacy interest in nondisclosure outweighs the public's interest in monitoring the city's removal of a prominent public official. 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.

With specific reference to licensure boards and the application of KRS 61.878(1)(a) to the records they maintain, this office has observed:

The need for disclosure is particularly strong where the records are from a licensing body, established to protect the public. Where . . . a licensing body establishes minimum qualifications . . . we are of the opinion that the public should be provided access to enough information to verify that these qualifications have been met. The public should not be required to simply take the licensing body's word that minimum qualifications were satisfied in a given case.

OAG 90-142, p. 7; see also OAG 79-257 (holding that the licensing of occupations and professions is in the public interest and the public is entitled to inspect records pertaining to licensing, but that a licensure board can exercise its discretion as to whether to release all of the information in its files or to withhold some of the information under one or more of the exemptions); 92-ORD-1238 (holding that a licensure board is required to disclose an application but may properly delete information of a personal nature pursuant to KRS 61.878(1)(a) ). Thus, the Attorney General has determined that although there is a significant public interest in insuring that a licensure board is properly executing its statutory function, that interest may be outweighed by the privacy interests of an applicant for licensure and therefore "not all information obtained by [the board] about a potential licensee" must be disclosed. OAG 90-142, p. 7.

As noted, the Kentucky Athletic Commission is statutorily:

vested with the sole direction, management, control, and jurisdiction over all professional boxing, sparring, and wrestling matches or exhibitions to be conducted, held, or given within the Commonwealth . . . over all licenses to hold boxing, sparring, or wrestling matches or exhibitions for prizes or purses or where an admission fee is received, and over all licenses to any and all persons who participate in the boxing, sparring, or wrestling matches, or exhibitions.

KRS 229.171. Further, "[i]n recognition of the fact that more supervision is desirable in this area," the General Assembly has "confer[red] upon the Commission wider discretion than that ordinarily possessed by administrative agencies," and reposed on the Commission the authority "to adopt and promulgate, amend or abrogate any and all rules and regulations considered by it necessary or expedient for the performance of its functions . . . ." KRS 229.180.

The Commission has adopted an extensive body of regulations at 201 KAR 27:005 through 27:070. Considerable attention in these regulations is devoted to boxing, elimination events, 4 and kick boxing matches, shows, or exhibitions. No less than eleven of the seventeen subparts of Title 201, Chapter 27, relating to the Athletic Commission, deal exclusively with its role in directing, managing, and controlling these events. Indeed, 201 KAR 27:030, Section 8, establishes class weights in boxing and kick boxing matches; Section 9 requires contestants to weigh in at a time set by the Commission and in the presence of a Commission employee; and Section 10 requires a physical examination of contestants on the day of the show (including a record of each contestant's weight). No analogous requirements exist in Title 201, Chapter 27, for wrestlers. Only 201 KAR 27:012 establishes requirements for wrestling shows and for participants in wrestling matches, and that regulation does not address class weights or mandate a weigh-in at any time. In sum, the regulations pertaining to the licensure of wrestlers are far less onerous than those relating to boxing and kick boxing and contain no reference to height or weight.

It is for this reason that we conclude that the public's interest in insuring that the Commission properly monitors the height and weight of licensed wrestlers, which is, as demonstrated, de minimum at best, is inferior to the wrestler's privacy interest in his or her height and weight. 5 Simply stated, no open records related public purpose is served by disclosure of items of information about a licensee "that reveals little or nothing about [the licensing agency's own] conduct." Id. at 829. "Mindful that the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity," and that the Athletic Commission has "effectively promoted the public interest in regulation" by disclosing the remaining portions of Ms. Wilkinson's application, we find that the Commission properly redacted her height and weight. 6 Board of Examiners at 328.

Conversely, we find that because KRS 229.121 expressly prohibits the issuance of a license to participate in any professional boxing or wrestling match or exhibition to persons under eighteen years of age, the Athletic Commission improperly redacted Ms. Wilkinson's date of birth. Access to this item of information enables the public to verify that the Commission is uniformly enforcing the minimum requirements for licensure, thereby advancing the public's right to know. Acknowledging that an individual's date of birth is personal information, we find that disclosure of the information does not constitute a clearly unwarranted invasion of personal privacy because the public's interest in regulation is, in this case, superior to the privacy rights of the applicant for licensure. The Commission should therefore arrange for Mr. McQueary to inspect a copy of Ms. Wilkinson's application on which her date of birth appears.

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.

Bart McQuearyP.O. Box 851Harrodsburg, KY 40330

Nancy Black, CommissionerKentucky Athletic CommissionP.O. Box 1360Frankfort, KY 40602

Michael PlumleyCommission AttorneyOffice of the Attorney GeneralCapitol Building, Suite 118700 Capitol AvenueFrankfort, KY 40601-3449

Footnotes

Footnotes

1 Mr. McQueary also requested a copy of the minutes of the Commission's February 20, 2003, meeting. Although no statement of the specific exception authorizing the withholding of the minutes was included, Ms. Black advised that the request was denied because the minutes had not been approved, and would not be approved, until the Commission's next meeting scheduled for May 15, 2003. Mr. McQueary did not appeal the Commission's denial of this portion of his request.