Request By:
Randy Skaggs
P. O. Box 1
Webbville, KY 41180Eric Blow, Director
Jefferson Co. Animal Control and Protection
P.O. Box 16346
3705 Manlick Road
Louisville, KY 40256Kris M. Carlton
Assistant County Attorney
531 Court Place, Suite 1001
Louisville, KY 40202
Opinion
Opinion By: A. B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Louisville Metro Animal Services violated the Open Records Act in denying Randy Skaggs' September 27, 2003 request for those portions of the records of dog and kennel licenses, required by KRS 258.185, that consist of "the names, mailing addresses, and telephone numbers of all Louisville and Jefferson County individuals or pet owners who have either purchased one dog license, multiple dog licenses, or kennel licenses. " For the reasons that follow, we find that although LMAS relied, in good faith, on 95-ORD-153 in adopting a policy of blanket nondisclosure of all information identified in Mr. Skaggs' request, that decision does not reflect subsequent refinements in the law and must therefore be modified. To the extent of this modification, the position LMAS takes is in error.
In a response dated October 2, 2003, Assistant Jefferson County Attorney Kris M. Carlton denied Mr. Skaggs' request. Relying on KRS 61.878(1)(a), 1 she explained:
The Kentucky Attorney General long has held that the release of licensee records such as these would constitute an unwarranted invasion of the privacy rights of the individuals involved. 95-ORD-151; 95-ORD-153. Further, the Attorney General has pointed to the seminal case regarding this privacy issue. Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994). which states that information such as home addresses and telephone numbers are "generally accepted by society as details in which an individual has at least some expectation of privacy, " that would outweigh the interests of yourself and The Trixie Foundation in the present case.
On appeal, Mr. Skaggs argues that because KRS 258.185 identifies the requested records as a "public records, " he is entitled to unrestricted access to those records. Further, he asserts that since the Kentucky Court of Appeals issued its decision in Zink v. Commonwealth , upon which LMAS relies, the "computer age . . . ha[s] dawn[ed]," and "what was once considered inaccessible or 'private,' is no longer necessarily considered to be so."
In supplemental correspondence directed to this office following commencement of Mr. Skaggs' appeal, Ms. Carlton elaborated on LMAS's position. She advised:
Mr. Skaggs states that the information he has requested consist of "public records. " Metro Government does not deny that the records sought are "public records, " but asserts that the disclosure of these public records is governed by the Kentucky Open Records Act, which allows for certain specified exemptions from disclosure.
In addition to the Zink v. Commonwealth case that was cited for Metro Government's denial . . ., the Kentucky Attorney General long has held that home addresses and telephone numbers fit within the privacy exemption set forth in KRS 61.878(1)(a); moreover, the AG consistently has expressed this determination, even after the inception of the search engines and internet directories mentioned by Mr. Skaggs. 95-ORD-153.
Interestingly enough, it is a fact that telephone directories such as the White Pages (that list person addresses and telephone numbers, and are freely distributed to the American population) were in existence long before the exemptions delineated in KRS 61.878 last were amended in 1994. This fact did not cause the Attorney General to reconsider his position on the applicability of the privacy exemption to the release of this type of information, and neither should the existence of electronic forms of such directories. To the contrary: in previously-cited 95-ORD-153, the Attorney General referenced the Zink decision . . . .
Obviously, release of the home addresses and telephone numbers of dog licensees would serve no public purpose that would outweigh the privacy interests of the individuals involved. If Mr. Skaggs were to receive such records, this would not inform a member of the public, himself, that the Department of Animal Control Services is properly executing its statutory duties. Mr. Skaggs himself, in his original request, stated that his purpose in obtaining the records would be to "compare to individuals known to have a dog or dogs but no current licensure for them." As the records sought are for those individuals who actually have purchased a dog license, this would not serve to determine whether the government is properly doing its job, but rather, whether other unnamed individuals are in dereliction of their requirements to license their pets.
On this basis, Ms. Carlton urged the Attorney General to affirm LMAS's denial of Mr. Skaggs' request. It is the decision of this office that although no open records related public purpose can be articulated that is of sufficient weight to overcome the licensees' privacy interest in their home addresses and telephone numbers, the public's interest in insuring that LMAS is discharging its statutory duty to maintain a record of all dog and kennel licenses issued is superior to the licensees' de minimis privacy interest in their names. To the extent that 95-ORD153 did not require disclosure of the licensees' names, that decision is hereby modified.
In 95-ORD-153, this office was asked to determine if the Jefferson County Department of Animal Control properly denied a request for animal licensure records from an attorney representing a veterinarian. Affirming the department's denial of the request, we observed:
[In Zink , the Court of Appeals found] 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. " Zink at 828. [T]he Zink court focused on the second part of the two part privacy analysis: whether an invasion of this privacy interest in warranted by a superior public interest in disclosure. The court observed:
Zink , at 828, 829. Applying the Zink analysis to the facts before us, we concluded that the privacy interest of the dog owners to whom licenses had been sold outweighed the public's interest in disclosure of "animal licensure records including the name and address of owner and breed and age of dog or cat." (Emphasis added.)
In 95-ORD-153, we did not factor into our analysis the fact that because the agency to which the request was directed in Zink provided the requester with the names of the private citizens whose records he sought, the court did not address the issue of disclosure of the names of the affected individuals. Instead, we approved a policy of blanket nondisclosure of all information, including names, appearing in the "animal licensure records." It is this omission that we correct today. Based on the subsequent decision of the Court of Appeals in Hines v. Commonwealth, Department of Treasury, Ky. App., 41 S.W.3d 872 (2001), and the fact that an open records related public purpose supports disclosure of the names of licensees appearing in the report required by KRS 258.185(1), we modify 95-ORD-153. Because the public has a right to be informed regarding LMAS's execution of its statutory functions, we find that the portion of the KRS 258.185 report that identifies the person to whom the license was issued must be disclosed. 2 Nevertheless, we continue to ascribe to the view that disclosure of the home address and telephone number of these licenses constitutes a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a).
In Hines , above, a commercial finder of persons who rightfully own unclaimed property, which was identified on lists published by the Department of Treasury, brought an action to compel the Department to release information concerning individualized valuations of each unclaimed property appearing on the Department's published list in addition to the already published names of the owners of the property. Relying heavily on its earlier analysis in Zink , the court held that the individual property owners' privacy interest in information regarding the value of each individual unit of unclaimed property outweighed the negligible public interest in disclosure and that such disclosure would constitute a clearly unwarranted invasion of personal privacy. At page 875 of the Hines decision, the court observed:
Although the public has a right to be informed regarding appellee's execution of its statutory functions, that right is satisfied by appellee's publication of the names of owners of unclaimed property, as well as information regarding the total values of the property which it holds and disburses each year. The release of information regarding the value of each individual unit of unclaimed property, by contrast, could pertain to those owners' possible incomes, a matter as to which "few things in our society are deemed of a more intimate nature." Zink, 902 S.W.2d at 829.
The court rejected the appellant's attempt to analogize her case to Aronson v. U.S. Department of Housing and Urban Development, 822 F.2d 182 (1st Circuit 1987), in which a finder sought to locate persons entitled to receive HUD reimbursements of mortgage insurance payments, emphasizing that in Aronson "the court did not address the issue of whether the public interest would be adequately served by releasing identifying information . . . but not related financial information." Id . Noting that the Department of Treasury had readily released information regarding individual owners' names as well as information regarding total property values, the court concluded:
[T]he release of additional information concerning the value of each private citizen's items of property would reveal "little or nothing" about appellee's own conduct in executing its statutory functions under the Open Records Act. Zink, 902 S.W.2d at 829. While it is true that a broad public interest might be served by appellant's attempts to disseminate such information to the owners of the property held by appellee, 'this cannot be said to further the principal purpose of the Open Records Act. " Id. at 829. We conclude, therefore, that the trial court did not err by finding that the individual property owners' privacy interests outweighed the negligible public interest in releasing individualized valuation information regarding unclaimed property, and that disclosure of such information as requested by appellant therefore would constitute a "clearly unwarranted invasion of personal privacy" under KRS 61.878(1)(a).
Id. at 876.
Here, as in Zink and Hines , the public's right to be informed regarding LMAS's execution of its function under KRS 258.185 is satisfied by disclosure of the names of persons to whom dog and kennel licenses have been issued. KRS 258.185 thus provides:
Each dog warden shall keep a record of all dog and kennel licenses issued, including licenses issued by designated license facilities, and shall report to the department quarterly those license sales on a form prescribed and supplied by the department. Designated license facilities shall make quarterly reports to the dog warden in order for the warden to report to the department. The record maintained shall be a public record.
While we are not persuaded that the concluding sentence of this provision mandates unrestricted access to the record in dispute, as Mr. Skaggs argues, we find that disclosure of the names of licensees promotes the public's right to know that dog wardens and designated license facilities are discharging their statutory duty to keep a record of all dog and kennel licenses issued. Because the public's interest in disclosure outweighs the licensees' privacy interest in their names, we do not believe that this limited disclosure constitutes a clearly unwarranted invasion of personal privacy.
The courts have established the parameters of an individual's reasonable expectation of privacy for open records purposes, in such cases as Zink and Hines , and we decline Mr. Skaggs' invitation to narrow these parameters based on the ready availability of personal information on the Internet. As the Zink court observed:
Information is no less private simply because it is available someplace. 3 We deal therefore, not in total nondisclosure, but with an individual's interest in selective disclosure.
Zink at 828. As in Zink , "[w]e, too, are hesitant to denigrate the sanctity of the home, that place in which an individual's privacy has long been steadfastly recognized by our laws and customs," id. at 829, absent a clearly articulated open records related public interest that is superior to the well-established privacy interest.
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 KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
Kentucky's courts have developed a "mode of decision" for determining the propriety of a public agency's denial of a request based on KRS 67.878(1)(a) "and that is by comparative weighing of the antagonistic interests," namely the public interest in the regulation of its agencies through records access and the competing privacy interests. Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992).
2 We note that this office determined, as recently as 2002, that a person's name is the least private thing about him and should only be withheld when there is a special reason provided by statute or court order. See 02-ORD-159, citing OAG 82-234. Nevertheless, in 02-ORD-36 we affirmed the Louisville Division of Police's decision to redact the names and identifying information from incident reports filed by victims of sexual offenses based on "a developing body of federal and state case law, coupled with a perhaps long-overdue recognition of the singularly traumatic consequence of crimes of sexual violence." 02-ORD-36, p. 6. That decision was affirmed by the Kentucky Court of Appeals. Cape Publications v. City of Louisville, 2002-CA-001659-MR (10/3/03); Motion for Discretionary Review filed 12-1-03, 2003-SC-000952. As in all questions pertaining to personal privacy, our analysis is "intrinsically situation, and can only be determined within a specific context." Board of Examiners of Psychologists at 328.
3 In Zink , the alternate sources of personal information were identified as telephone directories and voter registration lists.