August 20, 1996

In re: Don Wiggins/Winchester Municipal Utilities

Open Records Decision

This matter comes to the Attorney General on appeal from Winchester Municipal Utilities' denial of Don Wiggins's July 18, 1996, request for copies of monthly water and sewer bills paid by the Kroger Company and the Martek Company for a six month period. On July 19, 1996, Bill Bunch, director of administrative services for Winchester Municipal Utilities, denied Mr. Wiggins's request, advising him that “the records requested . . . are exempted by law from mandatory disclosure.” This appeal followed.

In his letter of appeal, Mr. Wiggins states that he is conducting “a rate study for the water and sewer users on some of the [i]ndustrial plants [which] are customers of WMU.” In response, Mr. Bunch asserts that the records which Mr. Wiggins requests are not public records, and are therefore not subject to the Open Records Law. Continuing, he observes:

The requested information relates directly to specific customer accounts. In the interest of protecting the privacy of individual customer information, the request was denied.

Winchester Municipal Utilities (WMU) does provide access to individual customer billing records under the open records law as requested by Mr. Wiggins. WMU will, upon written authorization and instruction by an individual customer, provide specific customer information. In addition, WMU will provide, under the open records law, generic billing information without individual customer names which can be used by consumer advocates to verify billing methodology and calculations.

Specific customer billing information is, in our opinion, private information which does not fall under the domain of the open records law.

Such information can be used to infer a particular life style of a residential customer and may suggest the competitive position of commercial and industrial customers.

Based on this reasoning, Mr. Bunch denied Mr. Wiggins's request.

We are asked to determine if Winchester Municipal Utilities properly denied Mr. Wiggins's request. We find that although procedurally deficient, WMU's response was otherwise consistent with the Open Records Law.

WMU violated the procedural requirements of the Open Records Law by failing to comply with KRS 61.880(1). That statute provides, in part:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.

In its initial response, WMU did not cite the exception authorizing nondisclosure. Nor did it offer any explanation for the denial of Mr. Wiggins's request. In its supplemental response, WMU again failed to cite the relevant exception authorizing disclosure, but briefly explained its position that the privacy interest of individual customers in their billing information is superior to the public's interest in disclosure. We urge Winchester Municipal Utilities to review the cited provision to insure that future responses conform to the Open Records Law.

Moreover, WMU improperly asserted that the records requested by Mr. Wiggins are not “public records” for purposes of the Open Records Law. KRS 61.870(2) defines the term “public record” as:

all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency. “Public record” shall not include any records owned or maintained by or for a body referred to in subsection (1)(h) of this section that are not related to functions, activities, programs, or operations funded by state or local authority.

This expansive definition incorporates all records prepared or retained by a public agency. Clearly, water and sewer bills fall within this provision.

However, not all public records are open records, and therefore available for public inspection. At KRS 61.878(1)(a) through (l), the General Assembly has carved out twelve exceptions under authority of which an agency may withhold public records from inspection. Among these is the privacy exception codified at KRS 61.878(1)(a). That exception excludes from inspection, “[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” Although this office has apparently never had occasion to address the applicability of this exception to private customer billing records in the custody of a public utility, we concur with WMU in its analysis, and find those records are exempt from inspection.

We begin with a determination of whether the records requested by Mr. Wiggins contain information of a personal nature. Kentucky Board of Examiners of Psychologists v Courier-Journal & Louisville Times Co., Ky. 826 S.W.2d 324 (1992); Zink v Commonwealth, Ky. App., 902 S.W.2d 825 (1994). If so, we must next determine whether 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.” Board of Examiners at 327.

As WMU correctly observes, customer billing records contain information which “touches upon the personal features of private lives.” Zink at 828. To the extent that the information “can be used to infer a particular life style of a residential customer or suggest the competitive position of commercial and industrial customers,” it is not unreasonable to assume that WMU's customers have at least some expectation of privacy in their billing records. See e.g., KRS 132.275 (providing that information about “persons, firms, or corporations” receiving utilities services which is furnished to the property valuation administrator “shall be treated as confidential”); compare OAG 82-128 (holding that a city can, by ordinance, require the publication of the names of persons who are delinquent in paying their sewer and water bills). Thus, we conclude that billing records contain information of a personal nature.

The next step in our analysis is to determine whether an invasion of privacy is nonetheless warranted because the public's interest in disclosure outweighs the utility customers' privacy interest. Our analysis:

does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to [sic] access to information as the next. While binding precedent has yet to clearly speak to the point, we believe 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. . . . As stated in Board of Examiners, supra, “[t]he public's `right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good.” 826 S.W.2d at 328. 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 828, 829.

The relevant public interest supporting disclosure in this appeal does not outweigh the privacy interests of individual customers in their billing records. Disclosure of these records would not subject agency action to public scrutiny in any meaningful way. Although Mr. Wiggins states that he intends to conduct a rate study which will benefit the public generally, WMU has indicated its willingness to “provide . . . generic billing information without individual customer names which can be used by consumer advocates to verify billing methodology and calculations.” While Mr. Wiggins's purpose may be a laudable one, “[w]e must consider the fact that other parties . . . [including] the merely curious, would have the same access under the Open Records Act as the [consumer advocate] seeking the information in this case.” Zink at 829. Release of specific billing information, which identifies individual users and their individual water and sewer usage, is, in our view, simply too invasive. If, however, review of the billing information which WMU has agreed to release discloses irregularities, the issue of inspecting individual customer accounts may need to be revisited.

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

Attorney General

Amye L. Bensenhaver

Assistant Attorney General



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WINCHESTER KY 40392-4177