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 Pikeville ("City") violated the Open Records Act in denying the March 17, 2015, request made by Jon Petree of Chelepis & Associates, Inc. for "copies of monthly water and sewer bills for the previous twelve months for" Pikeville Medical Center, 911 Bypass Road, Pikeville, Kentucky. Later that day City Clerk Rebecca Hamilton responded on behalf of the City via e-mail. 1 Ms. Hamilton advised that she would "need the PMC to release this information. I usually receive a signed approval for this information." On January 25, 2016, this office received an Open Records Appeal from Greg Trout of Chelepis & Associates, Inc. challenging this disposition of the request.
City Attorney Russell H. Davis Jr. responded to Mr. Trout's appeal on behalf of the City. Mr. Davis advised that the City did not receive a response from Mr. Petree. Acknowledging that the City's initial response was "possibly" deficient in failing to cite the purportedly applicable statutory exception, as required under KRS 61.880(1), he asserted that a denial of Mr. Petree's request was justified pursuant to "KRS 61.878, KRS 61.878(1)(a) & (1)(c)1." Counsel then quoted the language of KRS 61.878(1)(a) and (1)(c)1. but did not elaborate regarding how the latter exception applied to any portions of the specific records being withheld. Analysis of KRS 61.878(1)(c)1. is unnecessary here as "KRS 61.878(1)(c) is designed to protect records of private entities that have been disclosed to the public agency in question." 10-ORD-115, p. 11; 01-ORD-153. By its express terms, KRS 61.878(1)(c)1. is inapplicable to billing records generated by the City as opposed to records confidentially disclosed to or required by the City to be disclosed to it. 97-ORD-66, p. 9.
With regard to KRS 61.878(1)(a), the City relied upon the reasoning contained in 96-ORD-176, a decision which this office modified in 09-ORD-196. 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 erred in relying upon KRS 61.878(1)(a) to justify withholding the billing records for a multiple-user entity, namely Pikeville Medical Center, 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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