Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Jefferson County Property Valuation Administrator improperly relied on 18 U.S.C. §§ 2721, et seq. , the federal Drivers Privacy Protection Act, in partially denying Kevin Wilkins' December 7, 2010, request for "a list of locations of all real and personal property" owned, in whole or in part, by four named employees, the assessed value of the property, and the employees' payroll records for the period from October 1, 2009, to November 30, 2010. In all other material respects the PVA's response to Mr. Wilkins' request did not violate the Act.
In an undated letter of appeal directed to the Attorney General, Mr. Wilkins complained that the PVA did not respond to his request. The PVA subsequently acknowledged receipt of Mr. Wilkins' faxed request on December 7, but noted that the requester's signature was cut off and his name was not legibly printed thereon. In view of these deficiencies, the PVA attempted to fax information to Mr. Wilkins concerning records applications requirements under KRS 61.872, but was unsuccessful in transmitting the information to the return fax number. 1 The PVA heard nothing more from Mr. Wilkins until the PVA received notification of this appeal.
On January 5, 2010, the PVA notified this office that it would honor Mr. Wilkins' request for records reflecting the addresses and assessed value of real property owned by the named individuals. With reference to payroll information, the PVA advised:
[T]he listed individuals' payroll is prepared and issued through the state personnel department. The PVA office may have information related to the hourly wage rate of the employees but does not have actual pay records for the periods requested.
The PVA thereafter referred Mr. Wilkins to the Kentucky Personnel Cabinet, State Office Building, 501 High Street, Frankfort, KY 40601.
In response to Mr. Wilkins' request for personal property owned by the named individuals, the PVA observed:
[T]here are no records of personal property owned by the listed individuals other than records related to their privately owned vehicles which is being claimed as exempt. PVA office has access to the information concerning ownership of motor vehicles thru the Kentucky Transportation Cabinet's centralized motor vehicle registration database. However, PVA is prohibited from disclosing information contained in state motor vehicle records by operation of the federal Drivers Privacy Protection Act, 18 U.S.C. 2721 incorporated into the Kentucky Open Records Law by KRS 61.878(1)(l), which requires state agencies to withhold all public records or information the disclosure of which is prohibited by federal laws or regulation.
It is with this legal analysis that we disagree.
Since its enactment in 1994, DPPA has been construed to "prohibit the release and use of certain personal information from state motor vehicle records" maintained by state departments of motor vehicles and "any officer, employer, or contractor, thereof, . . ." 18 U.S.C. §§ 2721, et seq. "Personal information" is defined as "information that identifies an individual, including an individual's photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status." 18 U.S.C. § 2725(3). The federal act thus provides:
Except as provided in subsection (b), a state department of motor vehicles, and any officer, employee, or contractor, thereof, shall not knowingly disclose or otherwise make available to any person or entity personal information about any individual obtained by the department in connection with a motor vehicle record.
In a line of decisions issued by this office, the Attorney General has affirmed denial of open records requests for personal information, as defined in the statute, by the Transportation Cabinet or a county clerk. See, e.g., 98-ORD-1; 99-ORD-150; 01-ORD-25.
We are asked to determine if the PVA is an officer, employee, or contractor of the Transportation Cabinet to which DPPA extends. The PVA states that his office has access to the Cabinet's centralized motor vehicle registration database but presents no proof that he is an officer, employee, or contractor of the Cabinet. DPPA does not apply by its express terms to the property valuation administrator or to vehicle make and assessed value. At least one jurisdiction has determined that this fact, standing alone, undermined a tax assessor's argument that she was prohibited by DPPA from disclosing motor vehicle information under the state's sunshine law. In Davis v. Freedom of Information Com'n, 47 Conn. Supp. 309, 790 A.2d 1188, 29 Conn. L. Rptr. 439 (Super. Ct. 2001), judgment aff'd, 259 Conn. 45, 787 A.2d 530 (2002) (the Connecticut Supreme Court adopting the opinion of the lower court as a proper statement of the issues and the applicable law concerning those issues); see also 183 A.L.R. Fed. 37, a Connecticut court affirmed an administrative decision by the state's Freedom of Information Commission that the tax assessor improperly relied on DPPA in denying a request to inspect motor vehicle grand lists for 1997 and 1998. The court rejected the tax assessor's arguments that she was custodian of the records, reasoning that "if the legislature had intended to restrict access to the name, address, and ownership information provided to tax assessors by the department of motor vehicles . . ., it would have done so explicitly and specifically." Davis at p. 9.
Applying this analysis to the issue before us, we find that the property valuation administrator is not prohibited by DPPA from disclosing the make, model and assessed value of vehicles owned by the individuals identified in Mr. Wilkins' request. Assuming, for the sake of argument, that DPPA could be construed so liberally as to extend to the PVA, the information to which Mr. Wilkins requests access is not personal information within the meaning of 18 U.S.C. § 2725(3) because it does not identify those individuals by, for example, photograph, social security number, or driver identification number. Disclosure of the make, model and assessed value of their vehicles does not threaten their privacy or otherwise serve the purposes for which DPPA was enacted. Accordingly, we find that the PVA violated the Open Records Act in denying this portion of Mr. Wilkins' request.
We find no error in the PVA's alleged failure to respond to the request. Where, as here, the requester's name is illegible, and no return address is provided, we are unwilling to assign fault to the agency for noncompliance with KRS 61.880(1). The PVA documents one unsuccessful attempt to contact Mr. Wilkins at a nonworking fax number. Having received no response to his request, Mr. Wilkins did not follow up with the agency but initiated this appeal within a week. Under these circumstances, we are disinclined to expend additional effort addressing the procedural issues he attempts to raise.
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.
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