Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Louisville Metro Animal Services (LMAS) violated the Open Records Act in the disposition of Karen Dickson's request dated April 4, 2014, for copies of records relating to a certain dog formerly in the care of LMAS. For the reasons stated below, we find no violation of the Act.
Ms. Dickson's April 4 request stated as follows:
I am requesting any and all email correspondence, text messages, medical records, Chameleon records (including comments) regarding a dog named Sadie, ID number A485350 from the time period of 2-3-13 to 4-4-14.
Medical records should include who provided treatment if not provided by LMAS.
I am also requesting information regarding donations made to this animal [']s care, including the amount of donation, donors names and amount of donation, who collected the donation, where and how much of the donations were spent on the animal [']s medical care.
This request was submitted via an e-mail form, which was evidently accepted by LMAS. On April 9, 2014, Open Records Coordinator Dee Allen replied:
In response to your request below, Louisville Metro Animal Services has identified and provided copies of all responsive records meeting your request description. The copies contain redactions in protection of personal privacy/ safety consistent with KRS 61.878(1)(a) as well as items that are nonresponsive to your request as noted on the record. This completes your request.
At that time, the redacted information included not only home addresses and birth dates of private individuals, but also the names of LMAS employees, which Ms. Allen, in subsequent correspondence, claimed had been removed in the interest of "providing protection to the public employees which [ sic ] are believed to be in personal danger of retaliation or other harm if their identities are revealed." Ms. Dickson appealed to the Attorney General on May 13, 2014, contending that no basis had been established for deleting the names of public employees.
On June 4, 2014, Ms. Dickson reported that Ms. Allen had sent her "a generally unredacted set of the documents" which contained the missing names of public employees. She alleged, however, that she believed additional e-mails existed which had not been provided to her.
On June 9, 2014, Assistant Jefferson County Attorney Brianda A. Rojas confirmed that the only remaining redactions were "private home addresses, birthdates, and non-responsive information not associated or meeting the specifics of [Ms. Dickson's] request." She insisted that LMAS had provided "all responsive records identified and within the custody of the agency meeting Dickson's vague request, as interpreted by the management of the agency to be constituted of records held by those agency employees who could reasonably have been expected to hold such records."
KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny, " while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency. Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. at 327-28.
The public interest in open records has been analyzed as follows by the Kentucky Court of Appeals:
At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however 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.
Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). In Zink, the privacy interest of injured workers in their home addresses, telephone numbers, and Social Security numbers was found to outweigh the interest of an attorney seeking the information for marketing purposes where disclosure "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. " 902 S.W.2d at 829.
In Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (2013), the Supreme Court of Kentucky found that "[p]rivate citizens ? have a compelling interest in the privacy of law enforcement records pertaining to them." "To implicate an individual's privacy interest, ? the adverse repercussions of public disclosure need not be severe." Id. On the other hand, "any private interest the requester may have in the information is irrelevant." Id. at 85. In Kentucky New Era, the newspaper was seeking address, telephone, Social Security numbers, and other identifying information on crime victims, witnesses, and uncharged suspects, purportedly in the interest of assuring the public that the police department was "providing equal protection to all parts of the community." Id. at 86. While the Court found this interest legitimate, it did not agree "that that interest can only be vindicated by sacrificing the privacy interests of all those with whom the police come in contact." Id. at 86-87. Therefore, the identifying information was properly withheld.
We find nothing to distinguish this case from the result in the Kentucky New Era case. The addresses and birth dates of private individuals have no manifest bearing on how LMAC performed its public duties, and therefore this identifying information was properly subjected to categorical redaction under KRS 61.878(1)(a).
As for the alleged existence of other responsive records, we have nothing concrete to suggest that the agency withheld any responsive materials that could be located pursuant to a diligent search by persons reasonably likely to possess such records. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In general, it is not our duty to investigate in order to locate documents which the public agency states do not exist. 1 We therefore find no violation of the Open Records Act in the ultimate disposition of Ms. Dickson'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:
Ms. Karen L. DicksonMs. Dee AllenBrianda A. Rojas, Esq.
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