Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Lexington-Fayette Urban County Government ("LFUCG"), violated the Open Records Act in denying Christine Palm's request for the addresses of residential properties that had the sewer shut off for nonpayment. For the reasons stated below, we find that LFUCG did not violate the Act.
In her request to LFUCG, Ms. Palm ("Appellant") requested: "The address' [sic] of all residential properties that have had the sewer shut off due to Non-payment, service disconnection and transfer of service during the following dates (1/1/19 - 1/31/19). This is for commercial use." LFUCG's response on March 8, 2019, denied the request, stating that "Per KRS 61.878(1)(a), residential addresses are not permitted for release as this would constitute an unwarranted invasion of personal privacy. Therefore this request cannot be honored." Appellant appealed the denial, stating that she "simply wanted the addresses of properties that the sewer was turned off [due to non-payment] ." 1
In analyzing the parties' arguments, we take into account the public agency's burden of proof in sustaining its action under KRS 61.880(2)(c). 2 We are further mindful of the admonition in KRS 61.871 that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 . . . shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others."
In 1992, the Kentucky Supreme Court established a standard by which we judge the propriety of a public agency's reliance on KRS 61.878(1)(a) as a basis for denying access to public records. At pages 327 and 328 of
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Court articulated:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
The Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity. . . ." Id.
In a subsequent analysis of the privacy exemption, the Court of Appeals refined this standard.
Zink v. Com., Dep't of Workers' Claims, 902 S.W.2d 825 (Ky. App. 1994). At page 828 of that opinion, the court discussed its "mode of decision":
[O]ur analysis begins with a determination of whether the subject information is of a 'personal nature.' If we find that it is, we must then determine whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy. ' This latter determination entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [Bd. of Examiners, supra,] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
The public interest to be considered is the purpose of the Open Records Act in general, which "is meant to open the state's public agencies to meaningful public oversight, to enable Kentuckians to know 'what their government is up to.' It is not meant to turn the state's agencies into a clearing house of personal information about private citizens readily available to anyone upon request."
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013). See also Zink, supra, 902 S.W.2d at 829 ("the purpose of disclosure . . . is not fostered however by disclosure of information about private citizens . . . that reveals little or nothing about an agency's own conduct").
In 96-ORD-176, we held that water and sewer bills for individual residences were protected by the personal privacy exemption in KRS 61.878(1)(a) inasmuch as information regarding the amount of water and sewer usage could "be used to infer a particular life style of a residential customer. " 3 In this case, there is nothing in the record to indicate that an amount of usage is included in the list of users whose water has been shut off for nonpayment. If amounts of usage, by individual residences were at issue here, they could be redacted under our decision in 96-ORD-176. Otherwise, however, the only privacy interest at issue is the fact that the bills were unpaid.
The "payment or nonpayment of taxes and fees by individual citizens is information of a personal nature which touches upon their personal and private lives and in which they have some expectation of privacy." 97-ORD-9. "It is a widely held societal belief that matters of personal finance are intensely private and closely guarded."
Cape Publications, Inc. v. Univ. of Louisville Found., Inc., 260 S.W.3d 818, 822 (Ky. 2008).
On the other hand, "[i]t is in the public's interest to monitor who has failed to meet their legal obligations and whether any particular persons are being given preferential treatment in these matters." 97-ORD-9. The records at issue in 97-ORD-9 related solely to urban county council members and candidates for that office, thus creating a heightened public interest due to the suggestion that the council members might have been accorded preferential treatment as to collection of their delinquent local fees and taxes. Accordingly, in that decision, we found that the privacy interest of those public figures did not outweigh the public interest in disclosure, except as to "the amount . . . paid, or owing." Id. (quoting 92-ORD-1119.)
Here, the balance of public and private interests is different. There is no indication in the record that any of the residences in question belong to public officials or candidates for office, nor any suggestion of disparate treatment of any individuals by LFUCG. The fact that a private individual was unable to pay a sewer bill, or neglected to do so, does not have a manifest bearing on whether LFUCG properly performed its public functions, and thus constitutes private financial information protected by KRS 61.878(1)(a). Thus, we find that LFUCG did not violate the Open Records Act by withholding the residential addresses of residential customers whose sewer service was cut off. 4, 5
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) states that public agencies may withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]
2 KRS 61.880(2)(c) states:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
3 But see 09-ORD-196 (privacy exemption does not apply to aggregate water and sewer bills for multiple-user entities).
4 We note also that residential addresses are generally regarded as personal information subject to categorical redaction under KRS 61.878(1)(a). Kentucky New Era, supra, 415 S.W.3d at 88-89.
5 In 18-ORD-058, this office came to a similar result regarding residential addresses, but that decision also dealt with a utility that withheld a list indicating the number of residences for which water service was shut off in a 30-day period. That decision determined that the utility had violated the Act by withholding that particular record. As the request in the current appeal did not explicitly ask for such a list, we will not address that issue.