Opinion
Opinion By: Jack Conway,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Spencer County Fire Protection District violated the Open Records Act in the disposition of Lawrence Trageser's September 18, 2014, request for "personal phone records, cellular or land line, of Spencer County Fire District Board Chairman Glen Goebel." For the reasons stated below, we find no violation of the Act.
This request allegedly arose from an incident on September 16, 2014, when Mr. Trageser went to a fire station in order to give the fire chief a "football poster and a video." Chairman Glen Goebel, who was not present, received a call on his private telephone from an individual complaining about Mr. Trageser's presence on fire district property during working hours. Mr. Goebel then telephoned Fire Chief Nathan B. Nation to inquire about the situation and was told that there was nothing irregular about Mr. Trageser's visit to the fire station.
In an effort to find out who had complained to Mr. Goebel, Mr. Trageser requested that the fire district provide him with Mr. Goebel's private phone records between 9:00 a.m. and noon on the date in question. On September 22, 2014, Chief Nation replied:
Per KRS 61.878(1)(a) your request is denied and further states the [sic] public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy are not subject to public disclosure. Furthermore we feel these personal records are not public records subject to disclosure. As custodian of records I have no records that fall within your request.
Mr. Trageser's appeal to the Attorney General was received on January 6, 2015. Chief Nation and Spencer County Attorney Ken Jones both made responses to the appeal which essentially restated Chief Nation's original objections.
KRS 61.870(2) defines "public record, " in pertinent part, as follows:
"Public record" means all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency .
(Emphasis added.) In the case of telephones or lines purchased or leased by public funds, records of their use belong to the public agency and are deemed to be public records. (See 00-ORD-198 and decisions cited therein.) Records of calls made on a personal phone, however, are typically "a result of the private contract with the phone company [or a] personal cell phone contract." 03-ORD-019. Whether those constitute "public records" is dependent on the facts of the individual case.
There is nothing in the record on appeal to suggest that records of Mr. Goebel's calls on his personal phone are "prepared, owned, used, in the possession of or retained by a public agency. " The only allegation is that some individual who possessed Mr. Goebel's private phone number called him concerning the fact that Mr. Trageser was at the fire station. Presumably any records concerning said phone call would be prepared by the phone company, owned and used by either the company or Mr. Goebel, and in the possession of or retained only by the provider and the customer.
Since the facts do not show that Mr. Goebel's personal phone records were within the definition of "public record" in KRS 61.870(2), we find no violation of the Open Records Act. Because this threshold issue is dispositive of the appeal, we need not consider the agency's privacy argument under KRS 61.878(1)(a) or the assertion that the public agency possesses no responsive records.
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.