Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Regional Airport Authority violated the Open Records Act in partially denying Courier-Journal reporter Chris Poynter's March 18, 2005, request for "financial data regarding the airport expansion program, announced in June 1988, and the subsequent voluntary relocation program operated by the Louisville International Airport" on the basis of KRS 61.878(1)(k), incorporating 49 C.F.R. Part 24.9(b) into the Act. For the reasons that follow, we affirm the Authority's partial denial of Mr. Poynter's request.
In his March 18 records application, Mr. Poynter requested access to:
Data for how much money has been spent relocating homes and businesses, the source of that money (be it federal, state, local, or other), and how it was spent, . . . [and] the names of each property owner compensated when his/her house, land, or businesses was [sic] purchased . . . includ[ing], but . . . not limited to, the total relocation payment, . . . money paid for the house or business, moving costs, and other related payments.
On March 23, 2005, Louisville Regional Airport Authority Public Relations Director Rande Swann partially denied Mr. Poynter's request. Ms. Swann advised that the Authority would "not make available any records maintained by it in accordance with 49 C.F.R. Part 24 or which identify individuals and/or benefits they received." She explained:
Pursuant to KRS 61.878(1)(k), public records, "the disclosure of which is prohibited by federal law or regulation, " are excepted from the Authority's general disclosure obligation under the Act. Part 24.9(b) of Title 49 of the Code of Federal Regulations provides that "[r]ecords maintained by an Agency in accordance with this part are confidential regarding their use as public information, unless applicable law provides otherwise." Additionally, KRS 61.878(1)(a) excludes from the general disclosure obligation of the Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]" Kentucky's Attorney General has consistently concluded that information of a purely personal nature is excluded from the general disclosure obligation of the Act.
In closing, Ms. Swann indicated that the Authority had located one nonexempt public record responsive to Mr. Poynter's request and that it would continue its search for other nonexempt public records.
Upon receipt of the Authority's partial denial, The Courier-Journal initiated this appeal through its attorney, Jon L. Fleischaker. The Courier disputed the Authority's reliance on 49 C.F.R. Part 24.9(b), focusing on the "unless applicable law provides otherwise" language appearing in the regulation and asserting that the Kentucky Open Records Act is an "applicable law . . . [that] clearly provides for disclosure of the records." In addition, The Courier noted, KRS 382.135 and KRS 382.110, relating to deeds to real property acquired by the Authority, require those deeds to contain the names and addresses of the grantors, as well as the full consideration paid for the real property, and that they be filed in the county clerk's publicly accessible files.
The Courier also disputed the Authority's reliance on KRS 61.878(1)(a), asserting that the requested records do not contain information of a personal nature, and, indeed, that the information "is a matter of public record under [KRS 382.135 and KRS 382.110]." Assuming arguendo that the requested information could be characterized as personal information, The Courier argued that because "[a]ddresses of real estate purchased by [the Authority] are a crucial part of the [Authority's] task in administering the relocation assistance program" and "concern the transfer of public funds from [the Authority] to property owners," the open records related public interest in disclosure of the information outweighs any privacy interests implicated.
In supplemental correspondence directed to this office following commencement of The Courier's appeal, the Louisville Regional Airport Authority amplified on its position through its attorney, W. Thomas Halbleib, Jr. Noting that the Authority had agreed to produce records documenting annual relocation program sources and uses of funds, but excluding information specific to relocated individuals. Mr. Halbleib observed:
Under the Relocation Act, 1 the United States Department of Transportation has promulgated the regulations found at 49 C.F.R. Part 24. Part 24.9(b) of those regulations provides that:
(Emphasis added). The Authority maintains, in accordance with the regulations under the Relocation Act, records of, for example, the names of the more than 3,000 families whose properties it has acquired, the dates of purchase of their homes or business properties, total relocation payments, amounts paid for land and improvements, moving costs and other special needs such as disabilities, marital status, living arrangements and other similar information. To the extent Mr. Poynter requests records maintained in accordance with 49 C.F.R. Part 24, such records are confidential regarding their use as public information, unless applicable law provides otherwise.
Contrary to The Courier's view that the Open Records Act is an "applicable law provid[ing] otherwise," Mr. Halbleib asserted:
The specific mandate of the federal regulation prohibiting use of the records as public information controls over the general obligations set forth in the Open Records Act. In fact, the Open Records Act expressly accommodates the more specific provisions of Part 24.9(b) by providing that public records, the disclosure of which is prohibited by federal law, are exempt from the general disclosure obligation. Interpreting the regulation's reference to other applicable law to include the Open Records Act's general disclosure obligation would render the entirety of Part 24.9(b) meaningless.
In support, he cited City of Reno v. Reno Gazette-Journal, Nev., 63 P.3d 1147 (2003), in which the Nevada Supreme Court resolved an issue nearly identical to that presented by Mr. Poynter's appeal against disclosure, concluding that the Nevada Public Records Act was not "'applicable law' changing the confidential nature" of records relating to Reno's relocation program and maintained under the Relocation Act. City of Reno at 1150.
With reference to the Authority's invocation of KRS 61.878(1)(a), Mr. Halbleib commented:
A stated purpose of the regulations contained in 49 C.F.R. Part 24 is "[t]o ensure that owners of real property be acquired for . . . federally assisted projects are treated fairly and consistently, to encourage and expedite acquisition by agreements with such owners, to minimize litigation and relieve congestion in the courts, and to promote public confidence in . . . federally-assisted land acquisition programs." 49 C.F.R. Part 24.1. To fulfill this purpose, and in apparent recognition that persons whose homes and neighborhoods have already been adversely impacted by a public project need not also be required to make private information public, the records related to such programs are deemed confidential and the information contained therein protected from disclosure. Id. Part 24.9(b).
Relying on Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994), he explained that records maintained under the Relocation Act contain information that is generally accepted by society as details in which an individual has at least some expectation of privacy, the disclosure of which would not advance the public's right to know. It was his position that the individuals who have participated in the Authority's relocation programs "have already given up their homes . . . [and] should not be further subjected to disclosure of information of a truly personal nature merely to satisfy the public's curiosity," particularly where, as here, the Authority has agreed to the release of records reflecting the sources and uses of funds for its relocation programs.
It is the decision of this office that 49 C.F.R. Part 24.9(b) constitutes a federal law prohibiting disclosure of the requested public records, and the information contained therein, within the meaning of KRS 61.878(1)(k), and that the Louisville Regional Airport Authority properly relied on these provisions in partially denying Mr. Poynter's request. Having resolved the issue on appeal on this basis, we will not address the propriety of the Authority's reliance on KRS 61.878(1)(a).
As noted, KRS 61.878(1)(k) directs public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation. " This provision operates in tandem with 49 C.F.R. Part 24.9(b) to exclude from public inspection "[r]ecords maintained by an agency in accordance with this part [49 C.F.R. Part 24] . . . unless applicable law provides otherwise." 2 The legislative backdrop for this confidentiality provision was described by the Nevada Supreme Court in City of Reno, above:
The United States Congress enacted the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 [42 U.S.C. §§ 4601-4655] to establish "a uniform policy for the fair and equitable treatment of persons displaced as a direct result of programs or projects undertaken by a Federal agency or with Federal financial assistance. " [42 U.S.C. § 4621(b)] The Act requires a state agency to comply with the Act's policies whenever the agency seeks federal financial assistance for "any program or project which will result in the acquisition of real property on and after January 2, 1971." [49 U.S.C. § 4655(a)]
. . .
The federal Act provides that "[t]he head of the lead agency shall . . . develop, publish, and issue . . . such regulations as may be necessary to carry out this chapter." [42 U.S.C. § 4633 (a)(1)] The Act designates the Department of Transportation as the "lead agency. " [42 U.S.C. § 4601(12)] One of the regulations issued pursuant to the Act is 49 C.F.R. § 24.9(b)[.]
City of Reno at 1148-1150. In City of Reno, the Nevada Supreme Court determined that the provision of the Nevada Public Records Act that guaranteed public access to all public records "which are not otherwise declared by law to be confidential" 3 incorporated 49 C.F.R. Part 24.9(b) to exclude from inspection acquisition records declared confidential under that federal regulation. Rejecting the argument that the Nevada Public Records Act is an "applicable law" that makes such records public, within the meaning of the concluding clause of 49 C.F.R. § 24.9(b), the court applied the "accepted rule of statutory construction that a provision which specifically applies to a given situation . . . take[s] precedence over one that applies only generally" and concluded that:
the federal regulation specifically provides that these records are "confidential regarding their use as public information, unless applicable law provides otherwise." [49 C.F.R. Part 24.9(b)] The Nevada Public Records Act merely provides that public records that are not "declared by law to be confidential, " must be open for inspection. [NRS 239.010(1)] It does not declare that records regarding acquisition of property are public. Acquisition records have been declared confidential under 49 C.F.R. § 24.9(b), which was adopted by statute into Nevada law. Therefore, these records fit within the exemption provided in the Nevada Public Records Act. The Nevada Public Records Act is not "applicable law" changing the confidential nature of these records.
City of Reno at 1150. Because Kentucky's Open Records Act contains a provision expressly excluding from public inspection records or information the disclosure of which is prohibited by federal law or regulation, we find the court's reasoning in City of Reno, above, highly persuasive.
As in the Nevada case, the Kentucky General Assembly has enacted legislation addressing relocation assistance under the federal act at KRS 56.210 which declares, in part, that state and local agencies providing assistance shall "follow such procedures and practices as may be necessary to comply with the provisions of the Federal Uniform Relocation Act, " and its implementing regulations, including 49 C.F.R. 24.9(b). These provisions, coupled with the exception to public inspection found at KRS 61.878(1)(k), eliminate any doubt as to the protected status of records maintained by the Louisville Regional Airport Authority under the Relocation Act.
We concur with the Authority in its view that any other conclusion renders the federal confidentiality provision found at 49 C.F.R. Part 24.9(b) meaningless and the state exception incorporating same, and found at KRS 61.878(1)(k), a nullity. A construction of the phrase "unless applicable law provides otherwise" that includes this state's Open Records Act, as well as the corresponding public records acts of each state and the federal Freedom of Information Act, would, as the Authority properly observes, always require disclosure of records to which the federal regulation clearly extends protection. Moreover, we find unpersuasive The Courier's argument that other state law directs disclosure of the records, or portions thereof, in the form of formal recordation of deeds to real property in the office of the county clerk. Addressing this issue in the context of an appeal predicated on the application of KRS 61.878(1)(a), the "privacy exception" to the Open Records Act, in Zink v. Commonwealth of Kentucky, above, the Kentucky Court of Appeals recognized that information such as "telephone numbers and home addresses are often publicly available through sources such as telephone directories and voters registration lists," but concluded that such information retained its protected status under the Open Records Act, reasoning that the Act deals "not in total nondisclosure, but with an individual's interest in selective disclosure. " Zink at 828.
In sum, we find that although disclosure of the information Mr. Poynter seeks would no doubt enable the public to monitor the conduct of the Louisville Regional Airport Authority in the discharge of its duties relative to relocation assistance, federal regulation prohibits disclosure of the information. We are therefore spared debate on the issue of whether the competing privacy interests outweigh the public's interest in disclosure. KRS 61.878(1)(k), operating in tandem with 49 C.F.R. Part 24.9(b), erects a barrier to public access which we are not empowered to breach.
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.
Distributed to:
Jon L. FleischakerDinsmore & Shohl LLP1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
Rande SwannPublic Relations DirectorLouisville Regional Airport AuthorityP.O. Box 9129Louisville, KY 40209-0129
W. Thomas Halbleib, Jr.Stites & Harbison PLLC400 West Market StreetSuite 1800Louisville, KY 40202-3352
Footnotes
Footnotes
1 The Courier does not dispute the applicability of the Relocation Act to the Authority's relocation program.
2 In response to this office'sKRS 61.880(2)(c) inquiry, Mr. Halbleib provided the following example of an "applicable law provid[ing]" that the otherwise protected relocation assistance information may/must be disclosed:
The foremost example appears at 49 CFR Part 24.10(e). This Subsection of the Uniform Relocation Act regulations, which governs appeals from Agency determinations in response to applications for assistance under the Relocation Act, provides that "The Agency shall permit a person to inspect and copy all materials pertinent to his or her appeal, except materials which are classified as confidential by the Agency . . . . " This regulation constitutes an example of an applicable law providing that otherwise protected information maintained by the Authority must be disclosed. 49 CFR Part 24.9(b) notwithstanding. In fact, after the US DOT published the initial version of what has become 49 CFR Part 24, it received comments expressing concern about the consistency of Part 24.9(b) with Part 24.10(e). It revised 24.9(b) in response to those comments, clarifying that the confidentiality requirement applied only to the use of the records as public information: "It was pointed out that [24.9(b)] apparently conflicts with [24.10(e)] regarding confidentiality of records. The wording of [24.9(b)] has been changed to provide that the subject records are confidential only in that they are not to be considered public information." 50 FR 8955 (March 5, 1985) [emphasis added].
He reasserted the Authority's position that "providing such records to a reporter working on a newspaper story appears to constitute an archetypal use of the records as public information. The US DOT's explanation of its change in this regulation clearly expresses its intention that these records are not to be used as public information. This intention, as well as the language of the regulation, compels the conclusion that the records are excluded from the scope of Kentucky's Open Records Act. "
3 NRS 239.010(1) (emphasis added).