NOT TO BE PUBLISHED
May 28, 1996
In re: Lexington Herald-Leader Company/University of Kentucky
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the partial denial of an open records request submitted by Lexington Herald-Leader staff writer Mark Story to the University of Kentucky. On February 2, 1996, Mr. Story requested access to:
The list of season ticket holders to University of Kentucky basketball games, including the number of tickets held, the specific location of each ticket, and address at which UK communicates with each ticket recipient, for the following seasons: 1995-96, 94-95 and 93-94.
The list of season ticket holders to University of Kentucky football games, including the number of tickets held, the specific location of each ticket and address at which UK communicates with each ticket recipient, for the following seasons: 1995-96, 94-95 and 93-94.
On February 7, 1996, the University of Kentucky, through its custodian of records, George J. DeBin, responded to Mr. Story's request. Although Mr. DeBin agreed to provide Mr. Story with lists of season ticket holders and the location of their tickets, he indicated that the home addresses of the ticket holders would be redacted. Relying on KRS 61.878(1)(a), Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324 (1992), and 94-ORD-143, Mr. DeBin asserted that because he could identify no demonstrable interest that the public might have in the `address at which UK communicates with' the ticket holders . . . the [privacy] balance tips in favor of non-disclosure of these ticket holder's [sic] home addresses. It was his position that release of the home addresses of season ticket holders would do little to advance the goal for which the Open Records Law was enacted, i.e., to open agency action to the light of public scrutiny. United States Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 772 (1989).
In response to an amended request for the name, hometown, zip code, number of tickets and ticket location of season ticket holders, Mr. DeBin reiterated that the `region' or `city' of residence of a ticket holder . . . has no bearing on how the University of Kentucky Athletics Association is conducting its ticket selling business, and reasserted the need to protect ticket holders from clearly unwarranted invasions of their personal privacy.
On behalf of his client, The Lexington Herald-Leader Company, James L. Thomerson challenges the University's position. Applying the two part test for determining the propriety of a public agency's invocation of the privacy exemption to authorize nondisclosure of public records, formulated by the Kentucky Supreme Court in Board of Examiners, supra, he maintains that the disputed portion of the requested records does not meet the threshold requirement of being `of a personal nature.' Alternatively, Mr. Thomerson argues that even if the ticket holders have a privacy interest in the information, the public's interest in disclosure is superior. He observes:
By withholding the ticket buyers' addresses, the University avoids . . . scrutiny and denies the public any meaningful opportunity to monitor the public function it carries out. Disclosing ticket holder names without any other identifying information is tantamount to not releasing the names at all. In order to monitor the conduct of the people's business, the public must have more than simply the name John Doe included on a long list of ticket holders. Considering the possible number of John Does in Kentucky, the name alone is a meaningless piece of information. Rather, the public must be able to tell which John Doe is being identified as doing business with the government by purchasing a public asset.
In support of this position, Mr. Thomerson cites 94-ORD-45 (holding that the public's interest in disclosure of names, addresses, and telephone numbers appearing on viewer call-in sheets generated in the course of televised city commission meetings outweighed the de minimus privacy interest of the callers), and OAG 91-202 (holding that the names and addresses of persons licensed to practice a profession, including home addresses if those are the only addresses furnished by the licensee, are not protected by the privacy exemption). Noting that there is no bright line rule exempting home addresses from disclosure, he concludes that the public interest focuses upon the point of intersection between the government and the person in question -- whether that be a home or work address, and that that interest is superior to [w]hatever privacy interest may exist. . . .
We are asked to determine if the University of Kentucky properly relied on KRS 61.878(1)(a) in denying the Lexington Herald-Leader access to those portions of records relating to season ticket holders which disclose the ticket holders' home addresses or the addresses at which the University contacts them. For the reasons set forth below, and upon the authorities cited, we conclude that although the University properly denied that portion of the Herald-Leader's request pursuant to KRS 61.878(1)(a), it cannot reasonably argue that disclosure of those portions of records relating to season ticket holders which indicate the geographic distribution of those tickets would constitute a clearly unwarranted invasion of the ticket holders' privacy. Further, we conclude that the public interest in ascertaining how season tickets are geographically distributed would be served by disclosure. Thus, while we do not find that the University is obligated to release the home or mailing addresses of season ticket holders, or their zip codes, we believe that it is obligated to release the city and county of the ticket holders' residence as a means of disclosing how it conducts its ticket selling function. Such disclosure would not, in our view, constitute a clearly unwarranted invasion of personal privacy. Although the University may discharge this obligation by releasing all of the information requested in an unredacted format, it is not required to do so. It may discharge its obligation by releasing the season ticket holders' names and city and county of residence, but redacting their home addresses, or by releasing the names of the season ticket holders only and generating a separate document which discloses the geographic distribution, by city and county of season tickets, without personal identifiers.
The Kentucky Supreme Court's decision in Board of Examiners provides the framework within which we conduct our analysis. Our analysis does not, however, end with Board of Examiners. Since that decision was rendered, Kentucky's Court of Appeals has enlarged upon the basic principles set forth therein. In Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1995), the Court of Appeals applied the two part test for determining the propriety of public agency invocation of the privacy exemption set forth in Board of Examiners to information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct, and concluded that the privacy interests of those private citizens substantially outweighs the negligible Open Records Act related public interest in disclosure. . . . Zink at 829. Our resolution of this open records appeal turns on the reasoning contained in that decision.
We begin by noting that the disputed information, to wit, the home or mailing addresses of season ticket holders, does, in fact, meet the threshold requirement of being `of a personal nature.' Quoting liberally from the Sixth Circuit's decision in Heights Community Congress v. Veterans Administration, 732 F.2d 526, 529 (6th Cir. 1984), the Zink court observed:
There are few things which pertain to an individual in which his privacy has traditionally been more respected than his own home. (Citation omitted.) The importance of the right to privacy in one's address is evidenced by the acceptance within society of unlisted telephone numbers, by which subscribers may avoid publication of an address in the public directory, and postal boxes, which permit the receipt of mail without disclosing the location of one's residence. These current manifestations of the ancient maxim that `a man's home is his castle' (citation omitted) support the . . . important privacy interest in the addresses sought. [Citation omitted.] Similarly, many individuals choose to disseminate their home telephone numbers only on a selected basis. We, too, are hesitant to denigrate the sanctity of the home, that place in which an individual's privacy has long been steadfastly recognized by our laws and customs. One of our most time-honored rights is the right to be left alone. . . .
See also, 95-ORD-151.
We must next determine if disclosure of this personal information would constitute a clearly unwarranted invasion of personal privacy. This determination turns on whether the privacy interests implicated by disclosure are superior to the public interest. In Zink, supra, the Court adopted the approach taken by the United States Supreme Court in Reporters Committee, supra, holding that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act. Board of Examiners at 828. Continuing, the court observed:
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 at 829. As in Zink, the relevant public interest supporting disclosure of home or mailing addresses:
is nominal at best. Disclosure of the information . . . 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.
Unlike Zink, however, there is merit to the Herald-Leader's argument that disclosure of those portions of the records disclosing geographic distribution of season tickets would serve the public interest by revealing one aspect of this public function. We do not share the Herald-Leader's view that disclosure of the ticket holder's name is a meaningless piece of information. It seems to us somewhat disingenuous to assert that nothing can be gleaned from a person's name. Nor, however, do we share the University's view that disclosure of the ticket holder's city of residence is tantamount to giving out home addresses. Both positions are, in our view, exaggerated.
We believe that a proper balance may be struck between the public interest in monitoring the public function of the University in selling and distributing tickets, and the privacy interest of the ticket holders in being left alone, Zink at 829, by disclosing the name of the ticket holder and the city and county of the ticket holder's residence.
We do not believe that 94-ORD-45 and OAG 91-202, cited by the Herald-Leader in support of its position, are controlling. Both decisions pre-date the Court of Appeals' decision in Zink v. Commonwealth, and thus we were denied the opportunity to apply the Zink analysis in them. Moreover, these decisions did not establish any general propositions relative to disclosure of home addresses, but instead turned on their facts. At page 6 of 94-ORD-45, we specifically recognized that we did not intend to establish a rule of general application for all call-in sheets maintained by the city commission. . . . Similarly, our decision in OAG 91-202 was premised on the need for public accountability of professionals licensed by the state. Only if the business addresses of those individuals were not furnished to the licensing agency did this office find that disclosure of home addresses would not constitute a clearly unwarranted invasion of personal privacy. Neither decision established the rule that an individual has no privacy interest in his home address, and any interpretation to this effect is clearly inconsistent with the narrow holdings in those decisions.
In summary, we find that the University of Kentucky properly relied on KRS 61.878(1)(a) in denying The Lexington Herald-Leader access to home or mailing addresses of season ticket holders, but that disclosure of the city and county of the ticket holders' residence will not constitute a clearly unwarranted invasion of personal privacy. By permitting the public to monitor an aspect of the University's public function, i.e., the sale and distribution of season tickets, without denigrat[ing] the sanctity of the home, Zink at 829, we believe that a proper balance has been struck between the need for public oversight and the sacrosanct right of privacy. Consistent with these principles, it is within the University's discretion to exercise one of the three options set forth above.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
A. B. CHANDLER III
AMYE L. BENSENHAVER
ASSISTANT ATTORNEY GENERAL
George J. DeBin
Official Records Custodian
11 Administration Building
University of Kentucky
Lexington KY 40506-0032
James L. Thomerson
Stoll, Kennon & Park
201 East Main Street
Lexington KY 40507-1380