Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Henderson ("City") - Henderson Water Utility ("Utility") violated the Open Records Act in denying the May 20, 2015, request made by Ethan Lucht of Chelepis & Associates, Inc. for "copies of monthly water and sewer bills for the previous twelve months for" Methodist Hospital, 1305 North Elm Street, Henderson, Kentucky. By letter dated June 9, 2015, Eric A. Shappell of King, Deep and Branaman responded on behalf of the City and the Utility. Counsel first advised that the Utility "does not maintain bills for our customers. That information will most likely be found directly from the City [which] does the billing on behalf of the Utility." 1 Second, counsel argued that pursuant to 96-ORD-176, utility bills for individual customers are not subject to disclosure under the Open Records Act.
Quoting KRS 61.878(1)(a), counsel maintained that the "Attorney General's office has made it clear such customer billing records may contain information which touches upon the personal features of private lives, or may be used to infer the particular lifestyle of a residential customer, or, as in this particular case, may suggest a competitive position of a commercial or residential customer. " The only exception, counsel noted, is outlined in 96-ORD-237, "which states in part that a customer's billing information may be subject to open records if said customer has a special billing privilege/rate with said utility or municipality." Because Methodist Hospital has no such arrangement with either the City or the Utility, counsel maintained that its billing records are not subject to disclosure. On January 25, 2016, this office received an Open Records Appeal from Greg Trout of Chelepis & Associates, Inc. challenging this denial. On appeal Mr. Shappell submitted a nearly identical response and stated that "unless Mr. Lucht or Mr. Trout have some evidence that suggests Methodist Hospital has a special billing arrangement, this appeal should be denied." Because 96-ORD-176 and 96-ORD-237 were modified in 09-ORD-196, "to the extent both decisions recognized a cognizable privacy interest in the aggregate information contained in a water bill of a multiple user entity, " this office respectfully disagrees.
In 09-ORD-196, this office was asked to decide whether the City of Danville Water and Sewer Department had violated the Open Records Act in denying a request for "'one (1) copy of the 2008 and 2009, by month, water bills, to include sewer and storm water fees, paid to the City of Danville by EMRMC [Ephriam McDowell Regional Medical Center], Centre College, and CKASC [Central Kentucky Ambulatory Surgery Center, LLC].'" Id., p. 1. The agency relied on KRS 61.878(1)(a) in denying access "'because those documents can be used to infer the personal lifestyle of a customer or suggest the competitive position of a commercial or industrial customer and would be an improper and unjustifiable invasion of the customers' privacy, ' as the Attorney General determined in 96-ORD-176." 09-ORD-196, pp. 1-2. Significantly, this office modified 96-ORD-176 and 96-ORD-237, as "[b]oth decisions were erroneously postulated on the notion that equal privacy interests could be attributed to aggregate information contained in a water bill for a customer with multiple unidentified users and information contained in a water bill for a single residential user. " Inasmuch as 09-ORD-196, a copy of which is enclosed, "fundamentally stands for the proposition that generic, aggregate information contained in such billing records, which does not 'identify the water and sewer usage of specific individuals cannot be properly characterized as 'personal'," the reasoning contained therein is dispositive of the question presented. See also 11-ORD-196.
As in 16-ORD-060 (In re: Greg Trout/Frankfort Plant Board), which reaffirmed 09-ORD-196, the agency "appears to misapprehend the distinction between 'information regarding a specific customer' and 'aggregate customer data.' A large commercial or industrial entity may constitute a 'specific customer, ' but it is not a 'single residential user' and does not have a cognizable privacy interest under our analysis in 09-ORD-196." 16-ORD-060, p. 3. Accordingly, the City of Henderson -- Henderson Water Utility improperly relied upon KRS 61.878(1)(a) in withholding the billing records for a multiple-user entity, namely Methodist Hospital, as opposed to records of discrete residential customers.
Either party may appeal this decision by initiating action in the appropriate circuit court per 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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