Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Office of the McCreary County Judge-Executive violated the Open Records Act in denying the McCreary County School District's request to obtain copies of the signed petitions that were submitted to the McCreary County Clerk for that office to determine whether there were sufficient signatures to require an election to recall a proposed tax increase. For the reasons set forth below, we find that the Office violated the Act and must immediately provide the requested records.
By letter dated June 13, 2017, Michelle King, Director of Finance, McCreary County School District, requested that the McCreary County Judge Executive provide her with copies of the "Public records that pertain to the signed petitions to the Recallable Portion of the Nickel Tax." Douglas E. Stephens, McCreary County Judge Executive, responded by letter on June 16, 2017, denying Ms. King's request. Judge Stephens explained:
In reference to your open records request for the petitions, I currently have to deny your request based on the legal opinion provided by previous County Attorney Michelle Wilson-Jones during a request for petitions during the alcohol election process in 2012. I am enclosing a copy of that correspondence. At that time individuals requested copies of the petitions. Ms. Jones opined that such information is protected by the right of personal privacy relative to the ballot process. This request is virtually identical to that request so I am bound to abide by that legal opinion.
The opinion by Ms. Wilson-Jones was attached to the letter from the Judge-Executive and referenced KRS 61.878(1)(a) as the basis for her opinion. We cite, in relevant part, from that opinion by Michelle Wilson-Jones:
As you are aware, there are exceptions to the rules that govern the disclosure of public records. Among them, the protection of an individual's right of privacy. KRS 61.878(1)(a) states as follows: "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " The courts and the Attorney General have addressed the issue of "personal privacy" many times. Each and every time, the balance becomes whether or not the disclosure of the information would constitute a clearly unwarranted invasion of personal privacy. The Kentucky Court of Appeals has concluded that certain personal information, including social security number, home address, and telephone number are generally accepted by society as details in which an individual has at least some expectation of privacy. I would conclude, an individual's preference to support a "wet/ dry" vote would fit into that category and any individual that signed the petition in support of placing the matter on the ballot would have an expectation of privacy. . .
Timothy Crawford, attorney for the McCreary County Board of Education, then filed an appeal of Judge Stephens's denial on behalf of Ms. King and the McCreary County School District.
KRS 132.017 is the statute that, in general, provides the mechanism for voters to challenge a tax rate change, that is statutorily subject to recall, levied by a "local governmental entity or district board of education." That mechanism requires at least ten percent (10%) of the voters in the county (who voted in the last presidential election) to sign a petition to recall the tax. If the recall effort is successful, then the tax will be voted on at the next regular election, or at a "called election" for the purpose of voting on the tax. The petition requires the signature of the voter, followed by the printed name, street address, and Social Security number or birthdate of the person signing. From the record on appeal, it appears that such a petition was circulated among McCreary County voters and that, according to Judge Stephens, a "more than sufficient number [of the signatures] was verified to grant the intent of the petition." It is copies of those petitions that Ms. King requested from Judge Stephens, and which he denied on the basis of KRS 61.878(1)(a).
Analysis : In OAG 80-450, this office was asked, in regards to petitions for a local option election concerning alcoholic beverages whether the names on the petitions could be published; whether there is any liability for disclosure of the records; and whether a person has any legal recourse if his name is made public after signing the petition. We answered those questions:
It is our opinion that a petition for a local option election is a public record and may be inspected by any person. The petition may be published in a newspaper or in any other manner, including the names of the persons who signed the petition.
Unless a person purported to have signed a petition has had the court declare that his name was placed on the petition without the person's authority and should therefore be removed, we believe that the person has no legal recourse if his name is made public as a signer of the petition and there is no liability for the disclosure of the petition and the names thereon.
We find OAG 80-450 helpful in understanding the overall issue of releasing signed petitions, but since that opinion was issued significant court decisions have been issued that give even more specific guidance in deciding whether the petitions at issue may be withheld under KRS 61.878(1)(a) .
KRS 61.878(1)(a) excludes from the mandatory disclosure provisions of the Open Records Act "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " From this exclusion, "we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy. " Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 578 (Ky. 1994). The public's right to know, the Kentucky Supreme Court observed in Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., 826 S.W.2d 327, 328 (Ky. 1992), "is premised upon the public's right to expect its agencies properly to execute their statutory functions." "Inspection of records," the Court reasoned, "may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good." Board of Examiners , above. Echoing this view, in Zink v Commonwealth of Kentucky, 902 S.W.2d 825, 828 (Ky.App. 1994), the Court of Appeals confirmed that "we . . . determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved."
Recognizing that the Open Records Act "exhibits a general bias favoring disclosure, " the Supreme Court has also declared that in assessing the propriety of an agency's invocation of KRS 61.878(1)(a) "there is but one available mode of decision, and that is by a comparative weighing of the antagonist interests." Kentucky Board of Examiners at 327. The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory functions and individual privacy interests, noting that "[t]he statute contemplates a case-specific approach" and that "the question of whether an invasion of privacy is clearly unwarranted is intrinsically situational, and can only be determined within a specific context." Id. , at 328. Only if the individual's privacy interests are of sufficient weight to overcome the public's interest in insuring that the subject agency is "proper[ly] . . . execut[ing] [its] statutory functions," id. , can that individual be said to possess a substantiated and protected privacy interest.
In an early open records opinion, this office recognized that, in general, "a person's name is personal but it is the least private thing about him . . . . The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order." OAG 82-234, p. 3. Although this opinion predates much of the significant case law construing the privacy exception, and our construction of the exception has since been tempered by the recognition that "a bright-line rule completely permitting or completely excluding . . . [records and information] from disclosure is at odds with existing law . . .," 1 we continue to ascribe to the view that an individual's name appearing in a public record is presumptively open absent a showing of a privacy interest of sufficient weight to overcome the public interest in full disclosure. Accord, 02-ORD-159 (names of individuals placed on housing authority's criminal trespass list); 03-ORD-247 (names of persons to whom dog and kennel licenses have been issued); 05-ORD-037 (names of individuals listed as references by applicants for public employment); 05-ORD-081 (names of students residing in one school district but attending school in another school district) . No such showing is made in the instant appeal; the opinion of Ms. Michele Wilson-Jones merely states "I would conclude, an individual's preference to support a "wet/ dry" vote would fit into that category [such as social security number, etc.] and any individual that signed the petition in support of placing the matter on the ballot would have an expectation of privacy. " Ms. Wilson-Jones's letter does not explain why a person signing a petition for a wet/ dry vote (or petition for recall of a tax increase in this instance) would have an expectation of privacy, or why such expectation would outweigh the interest of the public in knowing who signed the petitions. The public interest in the petitions, as explained by Mr. Crawford is very high:
Without an opportunity to inspect and copy the specific records at issue, the Board [of Education] was denied its legal right to make a decision within the ten (10) day deadlines to decide whether to file an action in McCreary Circuit Court to contest the validity of the McCreary County Clerk's final determination that the Recall Petition filed by the Recall Committee was sufficient to put the matter up for an election.
Although the ten-day period to contest the petitions has passed, the Board of Education, and the public, may have other need 2 for the petitions. The public has a significant interest in determining how the McCreary County Clerk's office executed its function in determining that the Recall Petition was sufficient to put the matter up for an election.
Pursuant to KRS 61.880(2)(c), the burden of proof in sustaining the action rests with the public agency and we find that the Office of the McCreary County Judge-Executive has not met that burden of proof in explaining why the petitions should not be released. The Office of the McCreary County Judge-Executive must immediately release the signed petitions to the Recallable Portion of the Nickel Tax, with appropriate redactions for personal information 3 such as street address, Social Security number, and birthdate.
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.
Footnotes
Footnotes