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 Jefferson County Public Schools properly relied on KRS 61.878(1)(a) in denying Gregory Valentine's September 25, 2007, request for copies of "[a]ll names of work references listed on [the] May 16, 1979, job application of Charles Corey Horan." 1 For the reasons that follow, we find that JCPS adduces sufficient proof, on the unique facts presented, to support its invocation of KRS 61.878(1)(a) relative to the information withheld.
By letter dated October 3, 2007, JCPS Public Information Officer Lauren E. Roberts reminded Mr. Valentine that JCPS previously provided him with a copy of Mr. Horan's job application and resume, and that "[b]oth of these records contained the names and addresses of the organizations that Mr. Horan listed as previous employers." However, she noted, "personal names were redacted in accordance with KRS 61.878(1)(a) . . . ."
Shortly thereafter, Mr. Valentine initiated this appeal referencing a line of decisions in which the Attorney General has held that, in general, disclosure of names does not constitute a clearly unwarranted invasion of personal privacy. It was his position that "a substantial and compelling public interest is advanced by disclosure of the identity of any person offering himself as a work reference of an applicant for public employment. " In addition, he argued that such individuals "could not reasonably have any expectation that their identity would be secretly kept."
In supplemental correspondence directed to this office following commencement of Mr. Valentine's appeal, Ms. Roberts reiterated that JCPS had previously provided Mr. Valentine with a copy of Mr. Horan's employment application, including the job title, company name, and company addresses of Mr. Horan's work references, but that JCPS redacted the names of the individuals listed in deference to their privacy interests. She noted that this request was one of several Mr. Valentine submitted seeking "information regarding individuals connected to the victim of the crime for which he is incarcerated." Citing Zink v. Commonwealth, 902 S.W.2d 825, 829 (Ky. App. 1994) and Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575 (Ky. 1994) for the proposition that the underlying purpose of the Open Records Act is not furthered "by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct," she maintained:
The request for information in the instant case is for information that is over twenty years old and is contained on the application of an individual who is retired from state service and is no longer employed by JCPS. Given the age of the document requested, . . . the release of the individual names would do nothing to further Mr. Valentine's right to know what JCPS is doing and would not in any way subject JCPS to public scrutiny.
Because disclosure of the names would "substantially affect the privacy of the individuals named," Ms. Roberts urged this office to affirm JCPS's position. Having considered the particular facts giving rise to this appeal, we affirm.
In a recent open records decision arising from an appeal filed by Mr. Valentine, this office analyzed the privacy exception to the Open Records Act observing:
KRS 61.878(1)(a) excludes from the application of the Open Records Act, "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 established a standard by which to judge the propriety of a public agency's invocation of this exception. Recognizing that the Open Records Act "exhibits a general bias favoring disclosure, " the Court held that "there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests." Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327, 328 (Ky. 1992). The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory functions and individual privacy interests. Fundamental to this "comparative weighing of antagonistic interests" is the recognition 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, 902 S.W.2d 825, 828 (Ky. App. 1994), the Kentucky Court of Appeals elaborated on this "mode of decision":
The court emphasized that the only relevant public interest to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act which is "to further the citizens' right to know what their government is doing and . . . subject agency action to public scrutiny. " Zink at 828.
07-ORD-207, pp. 4, 5.
In applying the "comparative weighing of antagonistic interests" mode of decision, the Supreme Court also emphasized:
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.
(Emphasis added.) In a published opinion issued in 2006, the Court of Appeals reiterated that "bright-line rules permitting or exempting disclosure [of public records] are at odds with controlling precedent." Cape Publications v. City of Louisville, 191 S.W.3d 10, 12 (Ky. App. 2006) (emphasis added).
This office has traditionally taken the position that the public's interest in disclosure of the names of references submitted by public agency employees in or on their application materials is superior to the privacy interests implicated by disclosure. In general, this position was postulated on the view that "a person's name is personal but it is the least private thing about him . . . [and] should not be deleted from a public record unless there is some special reason provided . . . ." 93-ORD-32, p. 4, citing OAG 82-234, p. 3. See also, 05-ORD-046 and 06-ORD-006. Nevertheless, in 93-ORD-32 we recognized that "the public's interest in disclosure of the references submitted by a public employee is less compelling than its interest in knowing the employee's qualifications for public employment, " leaving the door ajar for a particular case in which the balance tips in favor of nondisclosure. On the facts JCPS presents, we believe this is just such a case.
The individual about whom Mr. Valentine requested information, Charles Horan, is retired from service and no longer employed by JCPS. The information itself is twenty-eight years old. Moreover, JCPS provided Mr. Valentine with the job title, company name, and company addresses of Mr. Horan's work references thereby effectively promoting the public's right to know about his prior work experience. While the age of the records is not always determinative, we find nothing in the record on appeal that is indicative of a heightened public interest in Mr. Horan or the individuals he identified as references. Compare, Cape Publications, above. For these reasons, we concur with JCPS in its view that "release of the individual names would do nothing to further Mr. Valentine's right to know what JCPS is doing, and would not in any real way subject JCPS to public scrutiny, " but "may substantially affect the privacy of the individuals named." Consistent with the rule that "bright-line rules permitting or exempting disclosure [of the names of references appearing in a public employee's application materials] are at odds with controlling precedent," Cape Publications at 12, we find that JCPS properly relied on KRS 61.878(1)(a) in partially denying Mr. Valentine's 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. Valentine also requested a copy of the "Jefferson County Public Schools organizational chart including all revisions made since 2000." JCPS responded to this request by agreeing to mail him a copy of the 64 page document upon receipt of a check in the amount of $ 9.83. JCPS declined that portion of his request relating to "all revisions made [to the chart] since 2000," asserting that the request was "too broad" because it implicated over 500 requests for revisions and several thousand pages of records. Although Mr. Valentine does not challenge this action, we believe that JCPS's position relative to this portion of his request was well taken.