Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Louisville violated the Open Records Act in the disposition of Jonathan Schmidt's November 4, 2016, request to inspect records relating to Fair Labor Standards Act classifications of certain positions. For the reasons stated herein, we find that the University did not timely fulfill the request, but permissibly redacted personal telephone numbers and employee ID numbers on the basis of KRS 61.878(1)(a).
In his November 4 letter, addressed to Senior Compliance Officer Sherri Pawson, Mr. Schmidt stated:
I am writing to review/copy documents under the Kentucky Open Records Act relating to recent FLSA classification determinations made by the university's Human Resources Department to specifically include the duty tests, notes, human resources documents, and job descriptions used for determinations on the following positions:
As of the date on his letter of appeal, November 15, 2016, Mr. Schmidt had received no response to his request. His appeal was received in this office on November 21, 2016.
On November 15, 2016, Ms. Pawson responded to the request:
I have asked the appropriate university officials to identify all responsive records and sent them to me for review. I expect it will take additional time to identify as the records you have requested may be in storage, in active use or otherwise not readily available. Further the University will be closed for the Thanksgiving holiday next week, therefore I will have an update no later than Nov. 29th.
On November 23, 2016, Ms. Pawson sent Mr. Schmidt the following update:
I have now identified the responsive documents to your request for records related to the university's FLSA classification determination for certain positions. Upon receipt of payment of the attached invoice I will mail copies of the documents to you. If you prefer, you can come in to review and receive copies (with payment).
Among the records I am providing I have redacted employee ID number and personal phone numbers. I relied on KRS 61.878(1)(a) exempts "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
The record contains a factual dispute regarding when Mr. Schmidt's request was received in Ms. Pawson's office. Ms. Pawson states that she received it in the mail on November 14, 2016, while Mr. Schmidt maintains that he hand-delivered it to a receptionist near her office on November 4, 2016, instead of using the mail. Although we cannot resolve this factual dispute on the limited record before us, we find that the University's response was procedurally deficient even if the request was not received until November 14.
KRS 61.880(1) requires a public agency to issue a written disposition of a request for records within three business days. KRS 61.872(5) sets forth limited circumstances under which a public agency may extend the time to produce public records:
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.
Although the university paraphrased the language of KRS 61.872(5) in its November 15 response and gave a date by which the records would be available, the response did not specify whether records were in storage, in active use, or otherwise unavailable. It merely stated the possibility that records "may be" any of the three. This does not fulfill the requirement of KRS 61.872(5) that a public agency provide a "detailed explanation of the cause for further delay."
Not only did the University respond before finding out the availability status of the records, but its final response on November 23 gave no indication that the records had in fact been unavailable in any way. Rather, the procedure followed by the University suggests a mere pro forma use of KRS 61.872(5) in order to gain additional time to fulfill the request. We accordingly find that the University committed a procedural violation of the Act by its failure to comply with the three-day time limitation imposed by KRS 61.880(1).
With regard to the University's redaction of employee ID numbers and personal phone numbers, 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 (Ky. 2013), the Supreme Court found that certain information, such as home addresses and telephone numbers and Social Security numbers, is not routinely pertinent to the public interest served by the Open Records Act. With regard to "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption, " the Court held, "the agency need not undertake an ad hoc analysis of the exemption's application to such information in each instance, but may apply a categorical rule." Id. at 89. With regard to the types of information at issue in Kentucky New Era , the Court found that the privacy interest "will almost always be substantial, and the public's interest in disclosure rarely so." Id. Therefore, the categorical redaction of this identifying information was upheld.
We have concluded in prior decisions, both before and since Kentucky New Era , that employee ID numbers were subject to redaction on the basis of personal privacy. 09-ORD-049; 16-ORD-194. As with private telephone numbers, disclosure of employee ID numbers typically would do little to further the public's right to know what the University is doing; nor would it in any real way subject University action to public scrutiny. Since this appeal presents no exception to the general rule, we find that employee ID numbers, as well as private telephone numbers, were properly made the subject of categorical redaction under KRS 61.878(1)(a).
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.