Opinion
Opinion By: Andy Beshear,Attorney General,Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Louisville Metro Government ("LMG") violated the Open Records Act in its disposition of James Miller's open records request for the rental housing registry maintained by LMG. For the reasons stated below, we find that Louisville Metro Government violated the Open Records Act in withholding, in its entirety, a rental housing registry but did not violate the Act in withholding, under KRS 61.878(1)(a), the names, addresses, email addresses, and telephone numbers of private citizens contained in the rental housing registry; LMG may redact such identifying information, but cannot withhold the entire record.
Pursuant to Louisville/Jefferson County Metro Government Code of Ordinances ("LMCO") § 119.01 et. seq. , all property located within Louisville Metro and occupied or offered for occupancy in exchange for money or any other consideration must be registered with LMG. The ordinance requires the registration to include the name, mailing and physical address, telephone number, and email address of the owner, or responsible managing operator (or other similar entity) of the property. LMG maintains this information in the rental registry.
James Miller ("Appellant") requested a copy of the rental housing registry. LMG responded that "All Rental Registration information maintained by LMG shall remain confidential pursuant to KRS 61.878(1)(a) and Metro Ordinance 119.04." Appellant appealed LMG's denial of his request, arguing that the information he seeks is "the street locations of rental properties in the Louisville Metro area, as maintained in the rental housing registry. This is information that is already publicly disclosed by the property owners in multiple formats such as newspaper and online advertisements, street signs, handouts, brochures, and other formats. "
Annale Taylor, Assistant Jefferson County Attorney, responded to the appeal on behalf of LMG. She stated that LMG relied upon KRS 61.878(1)(a) 1 in its denial and, as additional support, the confidentiality provision of the rental registry ordinance itself, LMCO § 119.04. That provision states that the rental registry information shall be maintained as confidential except as provided by the rental registry ordinance, by law, or in the event the property is cited for a violation.
LMG stated that owners of rental housing in Jefferson County are required to register their rental housing property 2 pursuant to LMCO § 119.03. "One purpose behind this ordinance was to improve Metro Government's ability to properly enforce property maintenance laws by having contact information for non-owner occupied and vacant housing units whose owners are frequently difficult to locate. . . . However, these same owners are not required by law to disclose their rental property street address in any of the various forums mentioned by [Appellant]."
Confidentiality provision of the rental registry ordinance . LMCO § 119.04 states:
CONFIDENTIALITY. Confidentiality of Information. All rental registration information collected by Louisville Metro hereunder shall be maintained as confidential and not disseminated or released to the public except as provided herein, required by law, or in the event the property is cited for violations of the Louisville Metro Code of Ordinances. If a rental registry property is cited for a violation, rental registry information may become part of the property maintenance case file, which is maintained by Louisville Metro Government and available for public inspection. (Lou. Metro Ord. No. 174-2016, approved 10-5-2016).
This office has repeatedly stated that a city cannot, by ordinance or any other device, regulate access to records in a manner which conflicts with the Open Records Act. In OAG 82-435, at page 2, we observed:
In enacting the Open Records Law, KRS 61.870 - 61.884, the General Assembly has preempted the field of the inspection of public records. A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided by KRS 61.878.
See 94-ORD-64, p. 4; 00-ORD-117, p. 7 ("Unless it is consistent with one or more of the exceptions to public inspection found in the Open Records Act, a promise of confidentiality has no legal effect"). Applying this reasoning to this appeal, we find that LMCO § 119.04 does not abrogate or supersede the mandatory disclosure provisions of the Open Records Act.
Personal Privacy Exception . The question then becomes whether LMG may rely upon KRS 61.878(1)(a), the personal privacy exception to the Act, as its basis for denying the request. LMG claims that the privacy exception applies to the street addresses in the rental registry because:
A rental property owner has a privacy interest in the street address of that property in that the owner may choose to only disclose the street address in certain forums or with specific individuals of their own choosing. This serves to protect the rental property from being targeted from vandalism or squatters in the instance the property is vacant. Additionally, this ordinance applies to property owners that may live in the property most of the time and only make it available for rent during certain events (i.e., the Kentucky Derby).
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 Bd. 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., Dep't 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. " Id.
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, 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 Inc. , the Court found that the privacy interest "will almost always be substantial, and the public's interest in disclosure rarely so." Id. Therefore, the Court upheld the categorical redaction of this identifying information.
We have subsequently upheld the categorical redaction of private e-mail addresses, see 16-ORD-205 (and decisions cited therein), and residential addresses, 18-ORD-058, n. 2. As for names of private individuals, we have stated that these may be redacted along with other identifying information if there is no indication that their disclosure would serve the public purpose of the Open Records Act. 16-ORD-188. Accordingly, we affirm LMG's nondisclosure of personal data of private individuals.
The privacy protection of KRS 61.878(1)(a) relates to personal privacy of private citizens . In withholding the entire registry, including information of property owners other than private citizens, LMG violated the Act. If a public record contains some private material excepted from the Open Records Act, it is the statutory duty of the public agency to "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). The agency "must discharge its duty under KRS 61.878(4), and must bear the costs attendant to this duty. " 95-ORD-82. As we have previously held:
[S]eparating excepted material is not equivalent to producing a record in a specially tailored format or nonstandardized format within the meaning of KRS 61.874(3) as required for a public agency to recover staff costs. . . . Any other conclusion would result in subversion of the intent of the Open Records Act, within the meaning of KRS 61.880(4), through the imposition of excessive fees.
08-ORD-183 (emphasis in original) (citing 95-ORD-82).
Therefore, LMG must disclose the record requested by Appellant, but may redact those parts of the record containing information of private citizens who own rental property.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(a) allows public agencies to withhold "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]"
2 LMCO § 119.02, "Applicability," states that the registration applies to all "rental housing units[.]"