Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville-Jefferson County Metro Government, Department of Codes and Regulations 1 violated the Kentucky Open Records Act in partially denying Kim Hutchison's August 1, 2012, request for a copy of "[a]ll complain[t] information" regarding her properties located at 2806, 2808, 2810, and 2812 S. 7th St. Rd. Shively, KY 40215 from the "last 18 months including inspections and violations written or otherwise brought about by any Louisville Metro Code Enforcement Officers or the Commission." 2 Having been provided with all existing responsive Service Request Detail forms, Ms. Hutchison initiated this appeal by letter dated August 23, 2012, specifically challenging the agency's redaction of the name and contact information of the complainants from the December 28, 2010, and July 28, 2011, complaints. Questioning why the name and telephone number of the "Primary Caller" were redacted from the July 28, 2011, complaint, given that "An anonymous caller called the Shively Fire Department about paint fumes in the air from KY Custom Auto Sales," Ms. Hutchison questioned the integrity of the Department in asserting that said information was improperly withheld, further noting that no inspection was performed in response to the January 17, 2012, complaint until July 2, 2012. In apparently failing to issue a written response of any kind to Ms. Hutchison's request until after she initiated this appeal, the Department violated the Act. Based upon the following, this office also respectfully disagrees with its ultimate disposition of Ms. Hutchison's request.
Ms. Hutchison did not include a copy of any written response by the Department with her appeal, presumably because none was provided. On appeal the Department offers no explanation for this procedural deficiency. Public agencies, including the Department, are required to comply with substantive and procedural requirements of the Open Records Act regardless of the requester's identity or purpose in requesting access to records. A verbal response is not sufficient. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency " shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." (Emphasis added.) Public agencies cannot generally postpone this deadline. 04-ORD-144, p. 6. "The value of information is partly a function of time."
Fiduccia v. U.S. Department of Justice, 185 F.3d, 1035, 1041 (9th Cir. 1999). As the Attorney General has frequently noted, this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3. Accordingly, in failing to issue a written response of any kind to Ms. Hutchison's request within three business days of receipt and provide any existing responsive documents, the Department violated KRS 61.880(1) as it did not invoke KRS 61.872(5) nor does it appear to apply. 3
KRS 61.880(1) also provides that 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 ." 4 Accordingly, the Kentucky Court of Appeals observed that "[t]he language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). A "limited and perfunctory response," the Court observed, does not "even remotely compl[y] with the requirements of the Act . . . ." Id. Because the Department initially failed to issue any written response, it necessarily failed to advance a legal argument in support of its partial denial of that request. Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency. . . ." Thus, in order to satisfy this burden of proof, the Department was required to not only cite the applicable statutory exception, but also provide a brief explanation of how that exception applied to the records or portions thereof being withheld in a timely written response per KRS 61.880(1). 04-ORD-106, p. 6; 09-ORD-016. The inaction of the Department in this regard violated the Act from both a substantive and procedural standpoint. However, upon receiving notification of Ms. Hutchison's appeal from this office, the Department belatedly invoked KRS 61.878(1)(a) 5 to justify the challenged redactions.
In support of its position, as in 12-ORD-149, the Department argued that a citizen has a "reasonable expectation" that his/her identity will remain confidential and not be released to a person who "might have reason to resent the communication made to the public agency. " Disclosing the identity of the complainant, the Department continued, does not provide the public with any information as to whether the agency has acted properly but increases the risk that a complainant will be subject to retaliation or harassment. In 12-ORD-149 (In re: Phillip W. McKinley/Louisville-Jefferson County Metro Government, Department of Codes and Regulations, issued on August 13, 2012) the Attorney General rejected this exact position, and the agency's blanket policy of withholding complainants' names and information, disagreeing that such general considerations justified redaction of the complainants' names in every case, and holding that Louisville Metro violated the Open Records Act by redacting information that identified the individual complainants from complaints relating to specific properties owned by the requester. See 99-ORD-193; 05-ORD-030. "Given the basic policy of the Act set forth [at KRS 61.871], the mandate of strict construction also codified at KRS 61.871, the assignment of the burden of proof to the Department per KRS 61.880(2)(c), and the judicial recognition that the Act "'exhibits a general bias favoring disclosure, '" [citation omitted]," this office concluded, "on the facts presented and in the absence of a particularized showing to the contrary , that 'the negligible privacy interest implicated by disclosure of the complainant's name,' 6 is outweighed by the significant interest of the public in monitoring the agency's performance of its public duties." 12-ORD-149, pp. 10-11 (original emphasis).
The relevant law is undisputed. Resolution of this appeal turns on the application of that law, and 12-ORD-149 in particular, to redaction of complainants' names on the facts presented, which differ from those in 12-ORD-149 (improbable that "a complaint regarding the height of a fence 'would evoke sufficient passion' to provoke retaliation and no specific facts have been presented here to suggest otherwise"), in relevant part, only insofar as the complainant(s) requested anonymity. The legal analysis contained at pages 3-11 of 12-ORD-149, a copy of which is attached hereto and incorporated by reference, is equally applicable on the facts presented; accordingly, this office will not unnecessarily lengthen the instant decision by summarizing the legal authorities referenced therein. Although the Department relies in good faith on the reasoning of 12-ORD-149, in essentially arguing that a request for anonymity, standing alone, enables the agency to satisfy its burden of proof, the instant appeal presents the occasion for this office to clarify that a request for anonymity, in the absence of any facts or circumstances to elevate the negligible privacy interest of a complainant in his/her name, does not constitute the "particularized showing" required under existing legal authority.
The Department argues that "specific and particularized requests" to remain anonymous were made by the complainants in this case, implicitly attempting to distinguish 12-ORD-149, in which even requests for anonymity were lacking, but cites no such facts or circumstances that would elevate the privacy interest of the complainant(s). Based upon the request of the caller, in each instance, the Department redacted his/her name and contact information prior to disclosing the responsive complaint to Ms. Hutchison. For example, on the December 28, 2010, complaint, the caller's request at the time of the complaint was documented as "'KEEP CONFIDENTIAL.'" The Department also provided several other complaints on which the caller's request was documented as "'REFUSED.'" Inasmuch as no information which identified the caller was provided in any of those instances, and thus none was redacted from those complaints provided to Ms. Hutchison, the instant appeal centers exclusively on the December 28, 2010, and July 28, 2011, complaints.
The "comments" section of the July 28, 2011, complaint indicates that "'An anonymous caller called the Shively [F]ire Department . . . ." On appeal the Department explains that said complaint was made by a Shively Fire Department Inspector who placed the call from a "non-government issued" mobile phone and specifically requested that his information be withheld. However, upon receipt of Ms. Hutchison's appeal, the Department has agreed to release his name. Upon the inspector's request, his private cell phone number is being withheld as the Department is providing the Shively Fire Department telephone number and address for his contact information, which suffices in terms of serving the relevant public interest. See
Zink v. Commonwealth, 902 S.W.2d 825 (Ky. App. 1994)(only relevant public interest considered "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act" and the "purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing"). Accordingly, the remaining question is whether the Department satisfied its burden of proof relative to KRS 61.878(1)(a) in redacting the complainant's name and telephone number from the December 28, 2010, complaint (reporting that body shop operated there is "painting cars with no paint booth or controls").
Acknowledging that a "particularized showing" is required to successfully invoke KRS 61.878(1)(a) under governing case law 7 and prior decisions of this office, including 12-ORD-149, the Department relies exclusively on the fact that the individual who made the complaint requested anonymity to justify redaction of his name and contact information. The Department reasonably, yet narrowly interprets 12-ORD-149 (citing 05-ORD-030, wherein the record on appeal was devoid of any facts or evidence that compelled this office to conclude that complainant requested or reasonably expected anonymity in lodging the complaint, and finding that record was equally lacking there) in arguing that a public agency satisfies its burden of proof relative to KRS 61.878(1)(a) in this context by presenting evidence showing that the identity of the complainant was properly withheld from disclosure based solely "upon an expressed fear of retaliation by the potential violator or where the individual making the complaint has specifically requested anonymity. " However, a request for anonymity is an example of a relevant factor as opposed to being dispositive. In the interest of absolute clarity, this office hereby emphasizes that 12-ORD-149 should not be interpreted to stand for the proposition that a request for anonymity, in and of itself, is always enough to justify withholding the identity of a complainant. Such a holding would establish a blanket rule that would effectively preclude the public from being able to ensure that a public agency is properly discharging its public function(s) in every case involving a request for anonymity regardless of the specific facts or circumstances. The resulting potential for abuse would contravene KRS 61.871, 61.880(2)(c), and the fact-specific analysis required under existing law applying KRS 61.878(1)(a). Because no facts or circumstances have been presented here to justify redaction of the complainant's name and contact information, 8 except for the complainant's request for anonymity, which does not, standing alone, constitute a particularized showing, this office must conclude that the Department violated the Act in partially denying Ms. Hutchison'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.
Distributed to:
Kim HutchisonPhillip C. BillsWilliam P. O'BrienBrianda A. Rojas
Footnotes
Footnotes
1 Although Ms. Hutchison directed her written request to "Phillip C. Bills AICP" and challenges the actions of the "Louisville Metro Planning and Zoning Department" on appeal, the undersigned Assistant Attorney General has confirmed with Louisville Metro Government that complaints of the nature requested are dealt with by the Department of Codes and Regulations, Division of Inspections, Permits and Licenses. The agency is therefore identified for purposes of this decision, as in 12-ORD-149, as the Department of Codes and Regulations.
2 Ms. Hutchison advised that she was informed on July 31, 2012, that a complaint had been filed "against one or more" of her tenants "at one or more of the following addresses. I was also told that I was not allowed the Name or Names of the complainants as [sic] Department policy." The Department does not refute this claim. Such a blanket policy violates the Open Records Act. See 12-ORD-149.
3 Pursuant to KRS 61.872(5):
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
4 As the Attorney General has consistently recognized:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
01-ORD-232, p. 4, citing 97-ORD-41, p. 6.
5 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).
6 [A] person's name is personal but it is the least private thing about him . . . . The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order (i.e., adoption records)." OAG 82-234, at p. 3 (emphasis added); 07-ORD-199. See 98-ORD-123 (upholding the decision to release a witness report, including the name, but with home address and telephone number redacted under KRS 61.878(1)(a)).
7 Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, 826 S.W.2d 324 (Ky. 1992)(determination regarding applicability of KRS 61.878(1)(a) is an "intrinsically situational" one that can only be made within a "specific context"), Zink v. Commonwealth , above (determination entails a "'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection")(citation omitted), and Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006)("bright-line rules permitting or exempting disclosure are at odds with controlling precedent"). See 12-ORD-149, pp. 3-6.
8 In 10-ORD-165, the Attorney General upheld the redaction by the Kentucky State Police of the social security numbers of a crime victim, witnesses, and the defendants, and the victim's and witnesses' dates of birth on the basis of KRS 61.878(1)(a). However, this office noted that while Zink , above , "also recognized a significant privacy interest in home addresses and telephone numbers that is generally superior to the public's right to monitor agency performance, Zink did not establish a rule of blanket nondisclosure of this information." 10-ORD-165, p. 4. It was therefore necessary for KSP "to make a particularized showing that disclosure of addresses and telephone numbers, on these facts, constitutes a clearly unwarranted invasion of personal privacy." Id.