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 State Board of Elections (Board) violated the Open Records Act in denying Dennis J. O'Keefe's request for a copy of the voter list in his precinct in Newport, Kentucky. For the reasons that follow, we find that the Board's denial did not violate the Act.
On June 1, 2007, Mr. O'Keefe submitted a Request for Voter Registration Data Form to the State Board of Elections (Form 84) requesting the paper Street Order list for all voters in Campbell County, precinct C304, Newport D. 1 On the form, Mr. O'Keefe checked the box marked "Other (The State Board of Elections will determine eligibility based upon information provided below)." He did not supply any further information below on the form. On June 4, 2007, after a telephone call from the Board for more information, Mr. O'Keefe provided the following additional information to justify his request for the list:
I am requesting the voting list in my precinct because I want to know about the political behavior of people in my neighborhood. I am a retired professor of political science and have been interested [in] voting behavior for a long time. I sometimes talk to people about politics and have been involved in local political campaigns. I campaign for and was elected to the Taylor Mill, Kentucky city council from 1983-1987. I like to compare voting turnouts and election results in Newport precincts to have a better understanding of politics in my city.
After receipt of Mr. O'Keefe's letter, the Board advised that his request which stated "? I want to know more about the political behavior of people in my neighborhood, " did not meet the definition for a "qualified" person as listed in KRS 117.025(3)(h), and thus denied his request.
Shortly thereafter, Mr. O'Keefe initiated the instant appeal, stating in part:
In rejecting my request the Board has exercised its discretion without any explanation or reference to standards. I believe the Board's decision is arbitrary and capricious and should not stand.
After receipt of notification of the appeal, Kathryn H. Dunnigan, General Counsel for the Board, provided this office with a response to the issues raised in the appeal. In her response, she advised in relevant part:
Each time the SBE receives a Form 84 request, the SBE must go through a two-part analysis pursuant to KRS 117.025(3)(h) to determine whether a requester is eligible to receive the information. The first part of the analysis is contained in the first sentence of KRS 117.025(3)(h). The SBE must automatically provide precinct lists to individuals who are "duly qualified candidates, political party committees or officials thereof, or any committee that advocates or opposes an amendment or public question." Mr. O'Keefe states in his letter that he is a "retired professor of political science" and has "been involved in local political campaigns. I campaign for and was elected to the Taylor Mill, Kentucky city council from 1983-1987." As such, Mr. O'Keefe expressly states that he is not a duly qualified candidate for office and makes no mention of being an official of a political party or committee. Mr. O'Keefe states that he has been involved in political campaigns in the past, but is not currently. Nevertheless, if he were currently involved in assisting another candidate in a political campaign, the candidate would have to submit the request. If Mr. O'Keefe had fit into any of these categories, he would not have checked the "Other" category on his Form 84 request.
Indeed, Mr. O'Keefe did check the "Other" category on his Form. As a result, the SBE must move to the second part of the analysis contained in the second and third sentences of KRS 117.025(3)(h) concerning the Board's discretion of selling the precinct lists to others and that the Board may not furnish the lists to those intending to use the information for commercial purposes. . . .
At the bottom of his Form 84 request, Mr. O'Keefe signed that he had read the quoted language of KRS 117.025(3)(h) and 31 KAR 3:010 (relating to commercial use of the precinct lists) and that he did not intend to use the precinct lists for commercial use.
Ms. Dunnigan, in her response, quoted 31 KAR 3:010, Section 6(4), which provides:
Request for a copy of the voter registration list shall be granted by the Board of Elections for the following purposes:
Addressing the application of 31 KAR 3:010(4) to the instant appeal, Ms. Dunnigan further advised:
? Section 6(4) of the administrative regulation states that the commercial use shall not include "scholarly, journalistic, political, or governmental purposes" and for "publication, broadcast" or to be used by a news medium. Mr. O'Keefe is a retired professor who appears to want to use the information for his personal interest of "I want to know about the political behavior of people in my neighborhood. " If Mr. O'Keefe were requesting this information to fulfill a scholarly, journalistic, or political purpose, Mr. O'Keefe would have stated as much in his letter or on the phone with the undersigned counsel. However, Mr. O'Keefe merely stated that his reasons for wanting the information are for personal curiosity of the voting habits of his neighbors.
Within the exercise of the Board's discretion granted by KRS 117.025(3)(h) and 31 KAR 3:010, the Board is duty bound to guard this information which would provide the requestor with such personal information of an entire precinct or county with the name, address, age code, party, gender, zip code, and a five-year voting history of every voter in the precinct including demographics of the precinct. This information goes above and beyond the information that would normally be granted through as Open Records Request or a request pursuant to KRS 116.095.
We have been asked to determine whether the Board's denial of Mr. O'Keefe's request violated the Open Records Act. For the reasons that follow, we conclude it did not.
KRS 61.878(1)(l) authorizes agencies to withhold "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." (Emphasis added.) KRS 117.025(3)(h) provides that the Board shall:
Furnish at a reasonable price any and all precinct lists to duly qualified candidates, political party committees or official thereof, or any committee that advocates or opposes an amendment or public question. The State Board of Elections may also furnish the precinct lists to other persons at the board's discretion, at a reasonable price. The board shall not furnish precinct lists for commercial use.
(Emphasis added.)
In OAG 88-16, we held that the State Board of Elections properly denied a request for copies of precinct lists where the requesting party did not meet the criteria required by KRS 117.025(3)(h). In that opinion, citing what is now KRS 61.878(1)(l) and KRS 117.025(3)(h), we recognized the statutory restriction on the use of precinct lists, stating:
Under the Open Records Act all public records are subject to public inspection unless those records are excepted from inspection by a statutory enactment. KRS 117.025(3)[h] requires the State Board of Elections make available to duly qualified candidates, political party committees and their officials and others the lists of registered voters by precincts with a specific restriction concerning the use of those lists.
(Emphasis added.) Thus, KRS 117.025(3)(h) requires that the Board make available to qualified candidates, political party committees and others the precinct lists, but also provides a specific statutory restriction concerning the use and disclosure of the precinct list to other persons by stating the Board may provide the lists to others at its discretion. As the Board explained above, Mr. O'Keefe did not fall within the class of qualified candidates or committees eligible for mandatory receipt of the precinct lists and further argued that if he had fit into any of these categories, he would not have checked the "Other" category on his Form 84 request. Moreover as explained above, the Board found Mr. O'Keefe did not fall within that class of persons authorized by 31 KAR 3:010, Section 6(4) to receive the requested precinct lists.
Accordingly, under the facts presented, we conclude that the Board properly denied Mr. O'Keefe's request for the precinct lists under authority of KRS 61.878(1)(l), KRS 117.025(3)(h), and OAG 88-16, as he did not establish that he fell within the class of requesters entitled to receive the precinct lists.
In his letter of appeal, Mr. O'Keefe argues that, in denying his request, the Board exercised its discretion without any explanation or reference to standards and thus he believed the Board's decision was arbitrary and capricious. The Attorney General "is not empowered to resolve . . . non-open records related issues in an appeal initiated under KRS 61.880(1)." 99-ORD-121, p. 17. Our review is confined to the issue of whether the Board violated the Open Records Act in its handling of Mr. O'Keefe's request, which, as noted above, we concluded it did not.
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.
Professor Dennis J. O'Keefe
Kathryn H. DunniganGeneral CounselState Board of Elections140 Walnut StreetFrankfort, KY 40601-3240
Footnotes
Footnotes
1 In its supplement response provided to this office, the Board explained that the Street Order List is comprised of lists of registered voters sorted in street order within the precinct and contain the name, address, age code, party, gender, zip code, and a five-year history of every voter in the precinct including demographics of the precinct.