Opinion
Opinion By: Gregory D. Stumbo, Office of Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Personnel Cabinet violated the Open Records Act in denying the open records request of Joe Biesk, Reporter, Associated Press, for the town of residence of William Bushey, former park manager at the Kentucky Dam Village State Resort Park. For the reasons that follow, we conclude that the denial did not constitute a violation of the Act.
By letter to the Cabinet, dated April 20, 2005, Mr. Biesk requested salary information and the town of residence of Mr. Bushey.
On April 21, 2005, Mark D. Honeycutt, Executive Director, Office of Legal Services, responded to Mr. Biesk's request, advising:
In response to your first request for William Bushey's salary, his most recent salary according to Personnel Cabinet records was $ 5,323.58 per month.
The Personnel Cabinet must deny your request for William Bushey's town of residence. A public agency may refuse to release information if the release of that particular information constitutes a clearly unwarranted invasion of personal privacy. A person's home address has been held to be information of such a personal nature that the release of such information would constitute an invasion of the individual's personal privacy. K.R.S. § 61.878(1)(a), OAG 90-60, OAG 91-81. William Bushey's town of residence is unrelated to his official job duties; therefore, William Bushey's interest in protecting his privacy is greater than the public's need to know personal information unrelated to his job duties. OAG 91-81. On those grounds, your request for William Bushey's town of residence is denied.
Shortly thereafter, Mr. Biesk initiated the instant appeal. Challenging the Cabinet's denial, he asserted, in relevant part:
First, I did not ask for Bushey's home address. My request was far less specific - merely the town in which he lives. I fail to see how releasing a person's town of residence could in any way be construed an invasion of privacy. Merely the name of the town where someone lives does not identify exactly where a person lives, nor does it reveal any other sensitive information about the person.
Bushey was running one of Kentucky's largest state parks. The public has an interest in knowing if he lived in the general vicinity of the park.
After receipt of notification of the appeal and a copy of the letter of appeal, Mr. Honeycutt provided this office with a response to the issues raised in the appeal. Responding to Mr. Biesk's arguments, Mr. Honeycutt, in part, advised:
Mr. Biesk claims that since Mr. Bushey ran one of the state's largest parks, the public has a right to know if he lived near the park. This creates no right to the automatic disclosure of Mr. Bushey's town of residence. Mr. Bushey's place of residence has no bearing on the decisions he made as a public employee, no matter how large the agency or responsibility. An employee would manage a park the same regardless of a personal choice of residency. Such a disclosure would not assist the public in determining whether public employees are acting in the public interest, but would infringe on the employee's right of personal privacy.
When balancing the two interests, Mr. Bushey's interest in keeping his town of residence confidential outweighs the public's interest in knowing where he lived. Disclosing Mr. Bushey's town of residence to the public gives no insight to his actions as a public employee and does not serve the public interest. Therefore, Mr. Bushey's interest in preventing the public from knowing his town of residence is the greater interest, and the Personnel Cabinet correctly determined not to disclose the information. We respectfully request your office to uphold its past rulings and maintain an employee's right to privacy.
We are asked to determine if the Personnel Cabinet properly relied on KRS 61.878(1)(a) in denying Mr. Biesk's request. Because disclosure of the park employee's town of residence "would not in any real way subject agency action to public scrutiny, " Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 829 (1994) and based upon our decision in 97-ORD-176, we find that the Cabinet properly withheld this information.
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, at 828, 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):
[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.
In 97-ORD-176, this office held that the Personnel Cabinet properly denied a request for, among other things, the "city and county of residence" of all employees at the Kentucky Veterans Center, under authority of KRS 61.878(1)(a). In reaching that conclusion, we stated, at p. 3 - 4:
. . . While we acknowledge that a public employee's city and county of residence, standing alone, is sufficiently attenuated from his or her home address as to be substantially less personal, we nevertheless believe that the employee has at least some expectation of privacy in this information. It is, after all, part and parcel of his or her home address, and can be used to more expeditiously determine that address through such sources as a telephone directory or voter registration list. Thus, the privacy interest of public employees in their city and county of residence is less significant than their privacy interest in home addresses, but cannot be entirely discounted.
?
The public can learn nothing about the operations of the Kentucky Veterans Center by knowing the city and county of residence of its employees. KRS 36.355 provides for the establishment of a state veteran's nursing home "to provide domiciliary or nursing home care to veterans who are residents of Kentucky." Records pertaining to the Veterans Center's functions, activities, programs, and operations are clearly of a public nature. KRS 61.870(2). Records pertaining to the Center's employees' city and county of residence reveal nothing about its functions, activities, programs, and operations. The law does not require that those employees reside in specific locations or reflect a particular demographic composition. Disclosure of this information would do nothing to further the public's right to know how the Veterans Center conducts its business.
. . . We therefore conclude that the employees' privacy interest, insignificant as it may be, is superior to the nonexistent public interest in disclosure. The Cabinet properly withheld this information pursuant to KRS 61.878(1)(a).
Having recognized that an employee might have at least some expectation of privacy in the disclosure of his "city and county of residence," we proceed to a determination whether disclosure of this information would constitute a clearly unwarranted invasion of personal privacy. 97-ORD-176. This determination turns on whether the privacy interests implicated are superior to the public interest in disclosure. 96-ORD-123.
Mr. Biesk contends that Mr. Bushey ran one of the state's largest parks and the public has the right to know if he lived near the park. In its supplemental response, the Cabinet argues that Mr. Bushey's town of residence "has no bearing on the decisions he made as a public employee, no matter how large the agency or responsibility. An employee would manage a park the same regardless of personal choice of residency. Such a disclosure would not assist the public in determining whether public employees are acting in the public interest, but would infringe on the employee's right of personal privacy. " Weighing the public's right to be informed as to what their government is doing, the Cabinet argues that Mr. Bushey's interest in keeping his town of residence confidential outweighs the public's interest in knowing where he lived, because disclosing his town of residence gives no insight to his actions as park manager and does not serve the public interest. We agree with the Cabinet's position.
We are aware of no requirement that a park manager's town of residence be located within a certain distance from the park he manages. Without more information or evidence that the distance affected the park manager's ability to manage the park, his town of residency would not in any real way reveal how he performed his duties as park manager or inform the public as to operations of the park. Weighing against this nonexistent public interest in disclosure is the public employee's privacy interest in his town of residency. As we held in 97-ORD-176, although a public employee's privacy interest in his city or county of residence is less significant than his home address, it is part and parcel of that address and can be used to more expeditiously determine that address through such sources as a telephone directory or voter registration list.
Under the facts of this appeal, we conclude that Mr. Bushey's privacy interest in his town of residency is superior to the nonexistent public interest in disclosure. 97-ORD-176. Accordingly, we find the Cabinet's denial of the request for this information did not violate the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an 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.
Distributed to:
Joe Biesk, ReporterAssociated PressState Capitol Building, Rm. 243Frankfort, KY 40601
Mark D. HoneycuttExecutive DirectorOffice of Legal ServicesPersonnel Cabinet200 Fair Oaks Lane, 5th FloorFrankfort, KY 40601