22-ORD-228
October 25, 2022
In re: Ronald Duke/Kentucky Board of Nursing
Summary: The Kentucky Board of Nursing (“the Board”) violated the
Open Records Act (“the Act”) when it failed to explain how a specific
exemption applied to the records withheld. However, the Board did not
violate the Act when it withheld private e-mail addresses that were
exempt from disclosure under KRS 61.878(1)(a).
Open Records Decision
On September 28, 2022, Ronald Duke (“Appellant”), an Army recruitment
officer, requested a list of e-mail addresses for all of the Board’s licensees. The Board
replied that it “cannot distribute” e-mail addresses because they are “protected”
under the Act. After the Appellant requested the specific statute upon which the
Board relied, the Board cited an administrative regulation, 201 KAR 20:085 § 4(3),
which provides that “[t]he email address provided [by a licensed nurse to receive
communications from the Board] shall be exempt from disclosure pursuant to KRS
61.878(1)(a).” The Appellant then asked the Board to explain how the privacy
interests of nurses would be implicated by disclosing their e-mail addresses. In reply,
the Board stated that it did “not need to specify how privacy interests are implicated
[because] email addresses are exempt from disclosure by regulation.” This appeal
followed.
When a public agency denies a request under the Act, it must give “a statement
of the specific exception authorizing the withholding of the record and a brief
explanation of how the exception applies to the record withheld.” KRS 61.880(1).
Here, in its initial response, the Board did not state a specific exception to the Act.
Moreover, when it later cited KRS 61.878(1)(a), the Board did not explain how that
exception applied to the requested records, but instead claimed that its own
administrative regulation relieved it of the duty to explain how the exception applied.Under KRS 13A.120(2)(i), however, “[a]n administrative body shall not promulgate
administrative regulations [t]hat modify or vitiate a statute or its intent.” Thus, an
administrative regulation cannot, on its own authority, “amend, alter, enlarge, or
limit the terms of legislative enactment.” Camera Center, Inc. v. Revenue Cabinet, 34
S.W.3d 39, 41 (Ky. 2000) (citing Brown v. Jefferson Cnty. Police Merit Bd., 751 S.W.2d
23 (Ky. 1988)). Accordingly, the Board’s administrative regulation cannot exempt it
from its obligations under KRS 61.880(1) to provide “a brief explanation of how the
exception applies.”
Nor can the Board, by administrative regulation, create a specific exception to
the Act for a particular record. An agency “shall not promulgate administrative
regulations [o]n any matter that is beyond the statutory authorization of the
administrative body to promulgate administrative regulations or that is not clearly
authorized by statute.” KRS 13A.120(2)(h). The statutes 201 KAR 20:085 cites for its
authority are KRS 314.071 and KRS 314.131, neither of which grants the Board
authority to exempt records from disclosure under the Act. Thus, 201 KAR 20:085 §
4(3) does not exempt the requested e-mail addresses from disclosure. Instead, the
Board must rely on one of the statutory exemptions to the Act. See KRS 61.878(1).
The Board implicitly relied on KRS 61.878(1)(a) by citing its own administrative
regulation. But the Board did not explain how KRS 61.878(1)(a) applied to the
requested e-mail addresses. For that reason, it violated the Act. KRS 61.880(1).
KRS 61.878(1)(a) exempts from disclosure “[p]ublic records containing
information of a personal nature where the public disclosure thereof would constitute
a clearly unwarranted invasion of personal privacy.” In reviewing an agency’s denial
of an open records request based on the personal privacy exemption, the courts and
this Office balance the public’s right to know what is happening within government
against the personal privacy interest at stake in the record. See Zink v. Com., Dept.
of Workers’ Claims, 902 S.W.2d 825, 828 (Ky. App. 1994). This Office has recognized
a significant privacy interest in personal e-mail addresses. See, e.g., 14-ORD-197; 07-
ORD-120; 06-ORD-131. Furthermore, in 14-ORD-197, this Office determined that
“[t]he private e-mail addresses of licensed nurses have no manifest bearing on how
the Board of Nursing performs its public duties,” and thus the privacy interest
outweighed the negligible public interest in disclosure. Here, likewise, disclosure of
the e-mail addresses requested by the Appellant does not advance the public interest
in monitoring government activities and they are therefore exempt from disclosure
under KRS 61.878(1)(a).
The Appellant argues that he should be able to obtain the e-mail addresses
under KRS 61.878(5) because he wishes to contact nurses for Army recruitment
purposes. KRS 61.878(5) provides that the exemptions under KRS 61.878(1) “shall in
no way prohibit or limit the exchange of public records or the sharing of information
between public agencies when the exchange is serving a legitimate governmentalneed or is necessary in the performance of a legitimate governmental function.”
However, this Office has consistently stated that disclosure of exempt records under
KRS 61.878(5) is within each agency’s discretion. See, e.g., 19-ORD-185; 05-ORD-133;
96-ORD-177. Therefore, the Board did not violate the Act when it denied the
Appellant’s request for licensees’ e-mail addresses.
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 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint e-mailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#377
Distributed to:
Captain Ronald R. Duke
Jeffrey R. Prather, Esq.
Kelly R. Jenkins, R.N.