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 Kentucky Housing Corporation violated the Open Records Act in denying Steven Farmer's December 5, 2005, request for access to "the digitally scanned record of housing assistance payments made in the year 2000 to the landlord of domicile at 112 Bracken Street, Augusta, Kentucky 41002 on behalf of [Housing Authority] client and applicant Shirley Ann Farmer . . . ." 1 Having received no response to his request, Mr. Farmer initiated this appeal on January 8, 2006. For the reasons that follow, we find that KHC's disposition of Mr. Farmer's request was procedurally deficient but substantively correct notwithstanding the paucity of supporting information KHC originally provided.
In supplemental correspondence directed to this office following commencement of Mr. Farmer's appeal, KHC notified this office that Mr. Farmer's December 5 request did not reach KHC's offices until December 22. On behalf of KHC, Pamela S. Jones explained:
December 23 and December 26 are state holidays and KHC offices were closed. On December 27 staff determined the request was an open records matter and forwarded it to the Legal Department where it was received and stamped on December 29, 2005. [KHC] offices were closed due to the holidays from December 30, 2005 through January 2, 2006. A proper response to Mr. Farmer's request was mailed to him on January 5, 2006.
Ms. Jones provided this office with a copy of KHC's January 5 response to Mr. Farmer's request in which she advised that the requested information was "not available without subpoena." It was KHC's position that "[r]ecords of this nature are exempt under KRS 61.878(1)(a) . . . ."
Unable to resolve the issue on appeal based on the record before us, on February 8, 2006, this office propounded a series of questions to KHC pursuant to KRS 61.880(2)(c). 2 Our questions and KHC's responses thereto, follow:
1. Please describe the nature of the responsive records withheld. Specifically, we ask that you describe the contents of a "record of housing assistance payments," the format in which they are regularly maintained, and the identities of persons who are permitted access to them (Housing Corporation employees, other agency employees, and/or others.)
The Housing Assistance Payment (HAP) contract is a contract between Kentucky Housing Corporation and a property owner. It is composed of three parts: Part A, contract information, contains the name of the tenant and household who are eligible to reside in the unit; Part B, body of the contract; and Part C, the tenancy addendum. The original contract is maintained in a tenant's file for a period of twelve months. The entire file is then sent to KHC's optical imaging department to be digitally scanned as a permanent record. KHC tenant-based rental assistance staff and the property owners have access to HAP records. Records would also be accessible to third parties upon a signed Release of Information by the property owner.
2. What factors are considered in determining the amount of housing assistance payments made on behalf of a recipient, e.g., his or income, his or her ability to monetarily contribute, his or her employment status, his or her medical condition, etc.?
Factors considered in determining the amount of housing assistance include an applicant's earned or unearned income, eligible allowances such as children, child care, medical expenses and whether the applicant household includes the elderly, disabled or handicapped. Included in the determination is the applicable payment standard for the county of residence based on number of bedrooms for which the applicant qualifies.
3. Please provide us with a brief description of Title VIII, assuming that this is the program under which Ms. Farmer's housing assistance payments were made, with citations to the applicable federal statutes and/or regulations.
The United States Housing and Urban Development (HUD)'s Housing Choice Voucher Program allows tenant-based rental assistance by providing rental subsidies for standard-quality units that are chosen by the tenant in the private market. The assistance stays with the participant and can be used at any property where the owner/manager accepts the voucher. Applicable regulations pertaining to this voucher program can be found at 24 CFR Part 982: Section 8 Tenant Based Assistance.
4. Please describe the Housing Corporation's role in the administration of housing assistance funding.
KHC receives funding from HUD, which is used to pay rent to owners on behalf of the program participants. Additionally, KHC must enforce and uphold regulations pertaining to the program as well as assist families in obtaining affordable housing.
5. The Housing Corporation relied on KRS 61.878(1)(a) to support its denial of Mr. Farmer's request. Please advise whether there are any federal or state confidentiality statutes or regulations which directly pertain to these records.
In addition to the exemption as stated in KRS 61.878(1)(a), KHC cites 34 CFR 16.1(3) and (4) pertaining to privacy in regard to requests made from an individual for a record about another individual.
In further support of its position, KHC provided this office with a copy of an unexecuted Housing Assistance Payment Contract and the 2006 Payment Standard. Having reviewed KHC's answers to our questions, the enclosed documents, and cited authorities, we conclude that KHC met its statutory burden of proof in denying Mr. Farmer's request upon this additional showing, but that its original response to his request was procedurally and substantively deficient.
To begin, KHC's terse response to Mr. Farmer's request was untimely. KRS 61.880(1), which establishes procedural guidelines for public agency responses to open records requests, provides:
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.
It is undisputed that, although dated December 5, 2005, Mr. Farmer's request did not reach KHC until December 22, 2005. Because December 23 and 26 were legal holidays, KHC's three day deadline for response commenced on Tuesday, December 27, 3 continued on December 28, and concluded on December 29. While this office has approved the agency policy of processing open records requests through its legal department, we have recognized that such a policy may "be problematic if it occasions delays in agency response." 93-OD-134, p. 10. Such appears to have been the problem in the instant appeal. As noted, KHC's response time commenced on December 27, the first business day after receipt of Mr. Farmer's request, and not on December 29, when his request reached KHC's legal department. Here, as in 93-ORD-134, we urge KHC "to streamline its policy" so as to insure timely processing of open records requests. Id.
Moreover, we question the adequacy of that response in light of the KRS 61.880(1) requirement that the agency identify the specific exception authorizing the withholding of the record or records, and provide "a brief explanation of how the exception applies to the record[s] withheld. " (Emphasis added.) In construing this provision, the Kentucky Court of Appeals has declared that "KRS 61.880(1) requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). A "limited and perfunctory response to [a] request," such as KHC's original response to Mr. Farmer's request, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. KHC cited the exception authorizing nondisclosure of the requested records, but failed to offer even a minimal explanation of how the exception applies to the records withheld. To this extent, KHC violated KRS 61.880(1).
We nevertheless affirm KHC's denial of Mr. Farmer's request on the basis of the additional information solicited by this office pursuant to KRS 61.880(2)(c). We find that the privacy interests of recipients of housing assistance payments in the nondisclosure of records from which their incomes, and other personal information, can be extrapolated, outweighs any arguable open records related public interest in disclosure of those records. The public interest will otherwise be served by disclosure of KHC records confirming the discharge of its statutory duty "to perform essential governmental and public functions and purposes in improving and otherwise promoting the health and general welfare of the people by the production of residential housing in Kentucky." KRS 198A.030(2).
Although Kentucky has no privacy act, the Open Records Law recognizes that disclosure of personally identifiable records in the hands of public agencies may implicate privacy concerns. KRS 61.878(1)(a) permits public agencies that receive open records requests to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In 1992, the Kentucky Supreme Court analyzed this provision in great depth, and departed from earlier open records decisions by declaring that the Act "exhibits a general bias favoring disclosure. " Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992).
The Court began its analysis with the proposition that "[t]he public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory function." Id. Continuing, the Court observed:
In general, inspection of records 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.
Id. The Court also recognized that the existence of the privacy exemption "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny." Id.
Drawing on these fundamental principles, the Court articulated the following standard for determining if a record may properly be excluded from public inspection pursuant to KRS 61.878(1)(a) :
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
Board of Examiners at 327-328. In closing, the Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Id. at 328.
In Zink v Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994), the Court of Appeals was again presented with a challenge to an agency's invocation of the personal privacy exemption. Echoing the rule announced in Board of Examiners, the court elaborated on its "mode of decision":
[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. [Board of Examiners] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. [Citation omitted.]
Zink at 828. Applying this standard, the court concluded that the Commonwealth of Kentucky, Department of Workers Claims, properly relied on KRS 61.878(1)(a) in denying an attorney access to injury report forms filed with the Department which contained marital status, number of dependents, wage rate, social security number, home address, and telephone number. The Zink court further recognized that the identity of the requester was irrelevant to the privacy analysis, insofar as "the Legislature clearly intended to grant any member of the public as much right to access to information as the next," id., and that "the only relevant public interest in disclosure to be considered is the extent to which disclosure would [advance] . . . the citizens' right to be informed as to what their government is doing." Id. at 828, 829.
In Hines v. Department of Treasury, Ky. App., 41 S.W.3d 872 (2001), the Court of Appeals focused almost exclusively on the competing interests associated with disclosure of records "pertain[ing] to [the]. . . possible incomes" of the individuals whose records were requested. Affirming the Treasury's denial of the request, the court recognized that such information "is commonly treated circumspectly," noting that "few things in our society are deemed of a more intimate nature." Hines at 875, citing Zink at 829. The privacy interest implicated by disclosure of the housing assistance payment records to which Mr. Farmer seeks access, and from which such factors as income, number of dependents, and medical condition, may be inferred, are strongly substantiated.
Conversely, the open records related public interest in disclosure of the payment records is negligible at best. In a line of decisions dating back to 1978, the Attorney General has recognized that "recei[pt] of public benefits is not a matter of personal privacy as referred to in KRS 61.878(1)(a)." OAG 78-828, p. 4 (Louisville-Jefferson County Community Action Agency improperly withheld records identifying locations of winterization projects); see also, OAG 80-288 (Lexington-Fayette Urban County Housing Authority improperly relied on KRS 61.878(1)(a)) in denying request for inspection reports on Section 8 housing units); 97-ORD-170 (Housing Authority of Jefferson County improperly withheld inspection reports relating to a specific housing unit occupied by a Section 8 participant); 98-ORD-189 (FIVCO Area Development District improperly relied on KRS 61.878(1)(a) in denying request for list of Lawrence County residents receiving free sewer taps); 05-ORD-258 (Louisville Metro Housing Authority failed to meet its statutory burden of proof in relying on KRS 61.878(1)(a) to support nondisclosure of Section 8 compliance hearing file). Significantly, however, none of these decisions involved records that directly touched upon the "intimate and personal features of private lives." Board of Examiners, at 328. It is this fact that distinguishes the instant appeal from the line of decisions referenced above. Disclosure of housing assistance payment records can only tangentially advance the public's right to know.
KHC acknowledges its duty "to comply to the full extent of the [Open Records] law," by disclosing records that reflect on "the integrity of its programs" and the discharge of its statutory duty, but remains committed to protecting "information about payments to a particular landlord [that] would necessarily inform the general public of a specific person's (the tenant's) personal financial situation . . . ." We believe that KHC's denial of Mr. Farmer's request strikes the appropriate balance between the public's right to know and the privacy interests implicated. Mr. Farmer enjoys no greater entitlement to these records under the Open Records Act than any other requester under the Act, notwithstanding his past relationship with Ms. Farmer. Zink at 828; Hines at 875. We therefore affirm KHC's denial of his request.
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 Mr. Farmer identified Ms. Farmer by date of birth and social security number. This information is omitted in deference to Ms. Farmer's privacy interests.
2 KRS 61.880(2)(c) provides:
The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
3 See 96-ORD-207 (applying KRS 446.030(1)(a) to the Open Records Act) .