Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Louisville Metro Emergency Medical Services (Metro EMS) violated the Kentucky Open Records Act in denying WAVE3 Assignment Editor Aaron Ellis's August 3, 2011, request for "[a] picture of the 5 LMEMS workers suspended on 8-2-2011." 1 Applying the "mode of decision" refined in
Zink v. Commonwealth, 925 S.W.2d 825 (Ky. App. 1994) on the facts presented, it does not appear that disclosure of the requested photographs would "further the principal purpose of the Open Records Act. " Id. at 829. Although the "privacy interests implicated are only incrementally more significant than the public interest supporting disclosure, " this office affirms the denial by Metro EMS on the basis of KRS 61.878(1)(a) because "'[d]isclosure of [the photographs] would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny. '" 08-ORD-014, p. 8, quoting Zink , above. In so doing, however, this office is not endorsing "bright-line rules permitting or exempting disclosure [of public records] ," as that would be "at odds with controlling precedent."
Cape Publications v. City of Louisville, 191 S.W.3d 10, 12 (Ky. App. 2006).
By letter dated September 6, 2011, Terri A. Geraghty, Assistant Jefferson County Attorney, supplemented the agency's earlier written response, focusing exclusively on the accessibility of the public employee photographs requested. Ms. Geraghty advised that Louisville Metro Government, "as a routine matter takes employee pictures and issues employee badge identification cards." Employees have no discretion as to whether they will "submit to having their photographs taken," but "have a reasonable expectation that their identification photos contained in their personnel files or on government computers will not be disseminated to the public." Although it can be argued "that a public agency employee's personal appearance is not private since it is disclosed every time a person steps out of his or her home," Metro EMS argued, "this does not mean that a public agency employee does not have a reasonable expectation of privacy in his or her government identification photograph. " According to Metro EMS, the fact that a record is not "wholly 'private' does not mean that an individual has no interest in limiting disclosure or dissemination. " Citing Zink , Metro EMS asserted that "[t]he issue is not total non-disclosure, but an individual's interest in selective disclosure. " In accepting public employment, Metro EMS continued, an individual does not "forfeit all right to privacy. " 2 Because "it would not be proper conduct to require Metro employees to pose for the media," Metro EMS reasoned, "it would seem that provision of access to identification photographs may serve the same purpose and likewise would be improper." 3
Having articulated these points, Metro EMS then quoted from
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), wherein the Kentucky Supreme Court articulated the standard (refined in Zink ) by which this office must judge the propriety of a public agency's reliance on KRS 61.878(1)(a). Metro EMS then correctly observed that in 08-ORD-014 this office "recognized that public employees have a cognizable privacy interest in their photos." In that decision, as Metro EMS explained, this office affirmed the denial by the Cabinet for Health and Family Services of access to a public employee's driver's license photograph because the employee's privacy interest was deemed superior, on the facts presented, to the public's interest in disclosure. Metro EMS argued that "disclosure of every detail about a public agency employee that may be contained in their personnel file that reveals little or nothing about the public agency's conduct and which would not in any real way subject the agency action to public scrutiny" does not foster the principal purpose of the Open Records Act.
Quoting 95-ORD-151, Metro EMS further asserted that in construing Zink , the Attorney General has recognized that "'[i]f the nature of the request is unrelated to the fundamental purpose of the Open Records Act, then countervailing interest[s], such as privacy, must prevail.'" The content of the photographs of the individual EMS employees, Metro EMS concluded, "has no bearing on their abilities as public servants" and is in "no way relevant in determining whether the employees are performing their duties." Quoting Board of Examiners , above, at 328, Metro EMS correctly observed that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Thus, Metro EMS argued that release of the photographs would do little to further the public's right to know what its government is doing "and would not in any real way subject the agency action to public scrutiny and is thus outweighed by the individual EMS employee[s'] privacy interest [s] in their photographs. " In the absence of any facts that would justify departing from governing precedent, namely 08-ORD-014, this office agrees that disclosure of the public employee photographs at issue would constitute a clearly unwarranted invasion of personal privacy within the meaning of KRS 61.878(1)(a).
In resolving the question presented, our analysis must be guided by the legislative statement of policy codified at KRS 61.871, declaring that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed," as well as the judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. " Kentucky Board of Examiners, above, at 327. As the Kentucky Supreme Court has emphasized, the "unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure 'may cause inconvenience or embarrassment to public officials or others.'"
Beckham v. Board of Education of Jefferson County, 873 S.W.2d, 575, 577 (Ky. 1994), citing KRS 61.871. Despite this "manifest intention to enact a disclosure statute," however, the General Assembly has mandated that certain records are not open for public inspection. Among those records excluded from application of the Act in the absence of a court order are public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a). When denying access to public records under this exception as Metro EMS did here, just as with any other, the public agency has the burden of proof. KRS 61.880(2)(c).
In Kentucky Board of Examiners , above, the Kentucky Supreme Court established the standard by which this office must determine whether a public agency has properly relied on KRS 61.878(1)(a) as the basis for denying access to public records. Recognizing the Act "exhibits a general bias favoring disclosure, " the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. The determination of whether a public agency has properly relied upon KRS 61.878(1)(a) necessarily turns on whether the offense to personal privacy that would result from disclosure of the information contained therein outweighs the benefit to the public, and is an "intrinsically situational" determination that can only be made within a "specific context." Id. However, the "clearly unwarranted" standard "tips the scales in favor of disclosure. " 03-ORD-084, p. 4.
As indicated, the public's "right to know" under the Act is premised upon the right of the public to expect its agencies to properly execute their statutory functions. Kentucky Bd. of Examiners, above, at 328. Generally speaking, inspection of public 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. Echoing this view, the Court of Appeals refined the standard of Kentucky Board of Examiners in Zink, above. In discussing its "mode of decision," the Court of Appeals observed:
[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. [ Kentucky Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
In determining whether an invasion of personal privacy was "clearly unwarranted" on the facts presented in Zink , the Court emphasized that its "analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request." Id. at 828. Rather, the only relevant public interest considered "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Id. at 829.
Having engaged in a "comparative weighing of antagonistic interests," the Court determined that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying the requester access to personal information contained in the injury report forms submitted by private citizens, including marital status, number of dependents, wage rate, social security number, telephone number, and home address. In so doing, the Court reasoned that the " relevant public interest supporting disclosure in [that] instance [was] nominal at best," and the dissemination of unsolicited information to injured workers might serve the "broad public interest" by educating injured workers through dissemination of unsolicited information regarding their legal rights under the workers' compensation statutes, but "[could not ] be said to further the principal purpose of the Open Records Act. " Id. at 829 (emphasis added). Accordingly, the substantial privacy interests of the injured employees in such personal information outweighed the "negligible Open Records Act related public interest in disclosure. " Id.
Although the privacy interests of the suspended Metro EMS employees is minimal, given that disclosure of a photograph does not have the security implications that disclosure of a social security number, home address, or home telephone number did in Zink or does generally, the fact remains that even this minimal privacy interest prevails on the facts presented given that disclosure of the photographs might arguably serve the "broad public interest" or satisfy the public's curiosity, but would not enable the public to ensure that EMS is properly executing its statutory functions. In other words, the relevant public interest in disclosure is "negligible" or "nominal at best." As the Attorney General recognized in applying the Zink standard, "disclosure of records that do not subject agency action to public scrutiny may not be required where there is a competing privacy interest. " 08-ORD-014, p. 6.
Our independent research confirmed that 08-ORD-014, upon which Metro EMS relied in support of its position, represents the governing precedent on this issue, and the following excerpt is equally applicable here:
We are unable to locate any previous decisions of this office dealing with a public agency employee's photograph. However, in 05-ORD-094 we determined that a detention center improperly relied on KRS 61.878(1)(a) in denying a request for a photograph of a federal inmate housed in that facility. Citing a 1981 opinion of the office in which we held that "[i]t is contrary to the principles of personal liberty recognized in this nation for persons to be secretly held in jail, " 4 and a 1983 opinion in which we extended this reasoning to the question of access to photographs of prisoners in jails, 5 we affirmed the public's right of access to the jail photograph concluding that its disclosure did not constitute a violation of the subject's privacy rights.
In the appeal now before us, no analogous open records related public interest is served by disclosure and no other open records related public interest has been articulated. 6 The [agency] advises us that [the requester] indicated she "wanted photographs so that she could post them on a website to warn others about these CHFS employees." This is not an "Open Records Act public interest in disclosure" 7 within the contemplation of Zink and its progeny. As in Zink , "[t]he relevant public interest supporting disclosure . . . is nominal at best," inasmuch as "[d]isclosure of [the photograph] would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny. " Id. Acknowledging that a photograph is a useful means of identification, that a person's visage is one of the least private things about him or her, and that the privacy interests implicated are only incrementally more significant than the public interest supporting disclosure, we nevertheless find that the [the agency] properly relied on KRS 61.878(1)(a) in denying [the] request for the . . . responsive photograph [s] located.
(Emphasis added.) As in 08-ORD-014, the purpose for which the requester/ appellant in this case appears to have requested the public employee photographs is not "an Open Records Act public interest within the contemplation of Zink and its progeny." The denial by Metro EMS is affirmed "on the basis that the [employees'] minimal privacy interest in the photo[s] is nevertheless superior to the nonexistent open records related public interest in disclosure. " 08-ORD-014, p. 3. Our holding today, as in all decisions involving application of KRS 61.878(1)(a), requiring a "comparative weighing of antagonistic interests," is restricted to its particular facts.
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:
Kristi SchankTerri A. GeraghtyDee AllenWilliam P. O'Brien
Footnotes
Footnotes
1 Mr. Ellis requested seven other categories of information and records, including the names of the suspended employees, "[a]ny and all commendations and reprimands of the LMEMS workers suspended on 8-2-2011," their personnel files, and the final action(s) taken by LMEMS. Although Metro EMS initially denied his request to the extent it was a request "for information as opposed to specifically described public records, " and on the bases of KRS 61.878(1)(h),(i), and (j), in responding to WAVE3 Assignment Manager Kristi Schank's appeal from this denial, Metro EMS further explained its reliance on these statutory exceptions, initially noting that when the request was received, the Metro Police Department's Public Integrity Unit "was at the initial stages of an investigation into allegations of possible criminal activity." No final action had been taken at the time. Our understanding is that four of the five employees were ultimately reinstated.
Metro EMS further advised this office that the PIU investigation "has now become inactive and the release of the names of the suspended individuals is no longer a concern." In addition, Metro EMS was in the process of "providing copies of the individuals' personnel files, current assignments, work history, commendations, reprimands, and disciplinary actions," per the request, and included among the records "would be a copy of the suspension letter and all final decisions that have been made." Accordingly, Metro EMS asserted that issues presented in this appeal were moot. Following a series of e-mails between this office and legal counsel for Metro EMS clarifying the status of this appeal, the agency forwarded an e-mail dated September 2, 2011, to us from Ms. Schank confirming that all of the issues were satisfactorily resolved with release of the records except for the "photo issue." Because any issues related to records ultimately released are now moot per 40 KAR 1:030, Section 6, and Ms. Schank has confirmed that she is only concerned with the "photo issue," this office will only address the accessibility of the requested photographs in this decision.
2 Metro EMS further observed that in some areas of public employment, such as undercover police work or tax collection, disclosure of a photograph may present security concerns; however, the agency has not articulated such concerns here and this argument is therefore unpersuasive.
3 Metro EMS acknowledged that "the news media has the same right of access as any other member of the public to information," but nevertheless argued that "disclosure to the news media means potentially far greater dissemination of the information [than] if it were given to a member of the public," which also should be "recognized in this particular situation." Because neither the identity of the requester nor his/her purpose in requesting access is legally relevant under Zink , this office gives no weight to the fact that a media outlet is the requester in determining whether the photographs are protected under KRS 61.878(1)(a).
4 OAG 81-395.
5 OAG 83-212 (holding that "[a] person's name and his photograph are both means of identification, the photograph being more distinctive and sure . . . [and] the personal privacy exception does not apply to the photographs of a person who is arrested, booked, and photographed . . . ." Accord, OAG 91-131; 02-ORD-203; 04-ORD-055.
6 Many public agencies encourage the use of photographic identification by their employees and photo ids are required for entry into many public agency facilities. Nevertheless, we are unable to locate any statute or regulation requiring public agency employees to obtain a photo id or requiring agencies to maintain copies of those photographs. Therefore, no argument can be made that disclosure of photographs would advance the public's right to know that the employee or agency is complying with a legal requirement.
7 Zink at 829.