NOT TO BE PUBLISHED
July 29, 1994
IN RE: Henry Meseke/Office of the State Treasurer
OPEN RECORDS DECISION
Mr. Henry Meseke challenges the State Treasurer's response to his May 12, 1994, request to inspect "all records of assets that have been escheated to the State of Kentucky." On behalf of the Office of the State Treasurer, Mr. Eugene Harrell, Director of Disbursements and Accounting and Agency Records Officer, partially denied Mr. Meseke's request on May 20, 1994. Mr. Harrell explained that the Abandoned Property Unit was transferred from the Revenue Cabinet to the Treasury in March, 1994. He advised Mr. Meseke that in accordance with "established policy and advice . . . from the Kentucky Attorney General, the records will have to be masked to exclude social security, bank checking, saving, insurance policy, bond and stock certificate numbers." Finally, he asked that Mr. Meseke narrow his request and specifically identify the desired records, "since it will be very time consuming to review and mask each record containing the confidential numbers noted above . . . ." Apparently dissatisfied with this response, Mr. Meseke initiated this appeal with the Attorney General.
Pursuant to KRS 61.880(2), this Office subsequently requested additional information from the State Treasurer to facilitate our review of her office's actions. We asked that the Treasurer identify the exception relied upon and explain its applicability. Mr. Harrell responded on June 3. He explained that as a matter of policy, the Treasurer does not disclose social security, bank account, credit card, insurance policy, bond, and stock certificate numbers appearing on records in its custody, and that the office has filed proposed amendments to its regulations reflecting this policy with the Legislative Research Commission. He explained that the policy is based on KRS 61.878(1)(a) and OAG 92-149. In closing, Mr. Harrell noted that the Treasurer asked Mr. Meseke to narrow his request "because it was too broad and would be an unreasonable
burden for the Abandoned Property Unit's four employees in the handling of thousands of files."
In a follow-up letter to this Office, Mr. Meseke argues:
[A]ny person who has "lost" an account may no longer be alive and hence, not able to claim their assets. Since it is clearly unknown to the original holder or the State of Kentucky if the owner of these unclaimed assets is alive or deceased, then the records should be open to the public since the owner may very well be deceased and hence, have no rights to privacy.
Moreover, Mr. Meseke argues, "nothing 'lost' can be considered private." In his view, if the records are open there is a greater likelihood that the rightful heirs will be located. If, on the other hand, they are partially closed, "the rightful owner may never be found." Mr. Meseke notes that when the Abandoned Property Unit was administered by the Revenue Cabinet, his requests were honored.1 He rejects the notion that compliance with his request would constitute an unreasonable burden inasmuch as the Unit is equipped with
1In 94-ORD-48, we held that the Revenue Cabinet improperly responded to a request for records in the Abandoned Property Unit, then under its control and oversight, when the Cabinet agreed to permit inspection of Unit records, including social security numbers, but refused to send a requester copies of same. At Page 3 of that decision we held:
The public agency knows what records are sought and since the requesting party's principal place of business is in another state, the public agency is required to mail to the requesting party copies of those records he would have been permitted to inspect had he come to the public agency's office in Frankfort.
The State Treasurer takes a consistent position relative to release of social security numbers and other numerical identifiers: requesters can neither inspect nor receive copies of them. 94-ORD-48 is therefore distinguishable.
computers which can be programmed to delete exempt information "as has been done in the past." He concludes "that no time would be lost if [the Unit] completely opened . . . these records by providing computer generated lists and charging a fee for them."
We are asked to determine if the Office of the State Treasurer properly relied on KRS 61.878(1)(a) in partially denying Mr. Meseke's request. For the reasons set forth below, and upon the authorities cited, we conclude that the Treasurer's actions were consistent with the Open Records Act.
As Mr. Harrell correctly notes, this Office has consistently held that social security numbers, as well as other numerical identifiers such as bank account numbers, may be excluded from public inspection, pursuant to KRS 61.878(1)(a), as information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. OAG 76-717; OAG 79-275; OAG 78-837; OAG 84-81; OAG 89-76; OAG 90-19. However, in OAG 79-275, this Office recognized, with specific reference to social security numbers, that a records custodian may allow inspection of otherwise exempt records,2 since the exemptions to the Open Records Act are permissive and not mandatory. At page 3 of that opinion, we observed:
The exemptions are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody. An official does not have to be concerned with whether a record should be released or not, but only concerned with whether he may justifiably withhold a record from public examination.
In other words, the exemptions "are a shield and not a shackle . . . ." This explains the Revenue Cabinet's position relative to records in the custody of the Abandoned Property Unit when
2"The custodian of records of a public agency may allow inspection of all the records in his custody regardless of whether the records may be exempt by their nature under the provisions of KRS 61.878 unless the records come under the exemptions provided by KRS 61.878(1)(i) and (j) [recodified in 1994 as KRS 61.878(1)(k) and (l)]." OAG 79-275, p. 1.
that Unit was administered by it. The Revenue Cabinet apparently did not wish "to maintain a policy that would keep the [records in its custody] as private as the Open Records Law would permit." OAG 79-275, p. 3, 4.
Nevertheless, the position adopted by the State Treasurer's Office following the transfer of the Abandoned Property Unit to it is entirely proper. The Treasurer is not bound by the Revenue Cabinet's policies relative to public records, and may adopt its own policy as long as it is a consistent one. OAG 79-582; OAG 82-394; OAG 82-629; OAG 89-86.
As noted, an agency may withhold information of a personal nature, such as social security numbers and other numerical identifiers, when disclosure would constitute a clearly unwarranted invasion of personal privacy. We do not concur with Mr. Meseke in his belief that it is reasonable to assume that individuals who have lost property are no longer alive, and therefore have no privacy interests to be protected, or that nothing lost can be considered private. Clearly, there are instances when this is not the case. As recent legislative efforts to curtail the use of social security numbers as universal identifiers amply demonstrate, there is tremendous potential for misuse of this information. Senate Bill 171 (effective 1/1/96) amending KRS 186.412. In enacting this legislation, the General Assembly sought to eliminate the threat to individual privacy and confidentiality of information posed by common numerical identifiers. See also, the Federal Privacy Act, 5 U.S.C. sec. 552a; Social Security Act, 42 U.S.C. sec. 405(c)(2)(C); OAG 92-149. It is the opinion of the Attorney General that the Office of the State Treasurer's partial denial of Mr. Meseke's request was consistent with the Open Records Act.
KRS 61.878(4) requires public agencies to separate the excepted material in a public record, and make the nonexcepted material available for examination. This provision prompted Mr. Harrell to request that Mr. Meseke narrow his request. As he subsequently explained, compliance with Mr. Meseke's request for "all records of assets that have been escheated to the State of Kentucky" would impose "an unreasonable burden for the Abandoned Property Unit's four employees in the handling of thousands of files." (Emphasis added.) We concur. In OAG 90-24, p. 12, we observed:
Where the request for records is broad . . . , and involves numerous records
in which confidential information is commingled with information that might be releasable, the difficulty of separation of confidential from releasable information, we believe, constitutes an unreasonable burden upon the agency within the meaning of KRS 61.872[(6)].3
In our view, the facts here sustain a claim of unreasonable burden within the meaning of KRS 61.872(6).
In a final attempt to secure unrestricted access to records in the custody of the Abandoned Property Unit, Mr. Meseke argues that "no time would be lost if [the Unit] completely opened . . . these records by providing computer generated lists and charging a fee for them." Although the General Assembly recently amended the Open Records Act to reflect the principle that a record maintained in an electronic format should be accorded the same treatment as a record maintained in a hard copy format, House Bill 64 (effective July 15, 1994) amending KRS 61.870, et seq., Mr. Meseke's original request was not couched in these terms. Accordingly, these issues were not raised, and are not ripe for review by this Office. Mr. Meseke may wish to resubmit his request to the Treasurer's Office for a determination, under the newly amended Open Records Act, whether the records can be made available in the requested format, and if so, at what charge.
Mr. Meseke and the Office of the State Treasurer may challenge this decision by intiating action in the appropriate circuit court. Although he should be notified of any action in circuit court, the Attorney General shall not be named as a party in that action, or in any subsequent proceedings.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
3KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the
Mr. Eugene Harrell
Director, Disbursements and Accountings
Office of the State Treasurer
Frankfort, Kentucky 40601
Mr. Henry Meseke
P. O. Box 246
Seaford, DE 19973
Footnote 3 continued:
custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.