January 26, 1996

In re: Lexington Herald-Leader Company/Kentucky Commission on Human Rights


This matter comes to the Attorney General on appeal from the Kentucky Commission on Human Rights' partial denial of reporter Bob Geiger's August 21, 1995, request to inspect and copy records relating to racial segregation in Lexington apartment complexes. Mr. Geiger requested access to records reflecting “the number and percentage of black tenants in apartment complexes” which are filed on an annual basis with the Commission. In response, the Commission, through its executive director, Beverly Watts, agreed to release the multiple dwelling reports filed by apartment complex owners, but withheld the names and addresses of the complexes which appear on the reports. Ms. Watts expressed the view that “KRS 61.878(1)(a) prevents the KCHR from disclosing the names and addresses on the reports.”

The question presented in this appeal is whether the Kentucky Commission on Human Rights properly relied on KRS 61.878(1)(a) in partially denying Mr. Geiger's request. For the reasons set forth below, and upon the authorities cited, we conclude that the Commission's reliance on KRS 61.878(1)(a) was misplaced.

In analyzing the propriety of an agency's invocation of KRS 61.878(1)(a), authorizing the withholding of “[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy,” we begin with a determination of whether the disputed records are of a personal nature. Only if there is a cognizable privacy interest in the records do we proceed to the second part of the analysis: determining whether public disclosure would constitute a clearly unwarranted invasion of personal privacy. Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992); Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994).

Bearing in mind that the disputed portions of the multiple dwelling reports do not contain the names and addresses of tenants occupying apartment complexes, but instead contain the names of the complex and the complexes' addresses, we find that there is no cognizable privacy interest in these records. At issue are residential structures which have been assigned names and street addresses. Records reflecting these names and addresses can hardly be said to touch upon “the personal features of private lives.” Board of Examiners at 328. Nor can the names and addresses of the complexes be characterized as “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 counsel for the Herald-Leader notes in his letter of appeal, “The apartment complexes do not have a privacy interest or expectation with respect to their address and identity on the public records in question.” We agree.

Assuming, for the sake of argument, that the disputed portion of the multiple dwelling reports could somehow be said to implicate privacy concerns, we find that the public's interest in disclosure of the unredacted record clearly outweighs those concerns. Pursuant to KRS 344.170, the Kentucky Commission on Human Rights is charged with broad authority relative to “encourag[ing] fair treatment . . . foster[ing] mutual understanding and respect among and . . . discourag[ing] discrimination against any racial or ethnic group or its members,” including oversight and enforcement duties relative to discriminatory housing practices. KRS 344.600; KRS 344.360. Pursuant to this authority, the Commission has promulgated regulations which require submission of annual reports by owners of housing accommodations covered by KRS 344.360. 104 KAR 1:060. This data collection is aimed at “monitor[ing] compliance with state statutes that prohibit persons from discriminating against tenants and applicants on the basis of race or national origin.” 104 KAR 1:060 Section 3(4)(a).

In a seminal opinion, the Kentucky Supreme Court observed:

The 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.

Board of Examiners at 328. We believe that inspection of unredacted multiple dwelling reports serves the public interest by disclosing whether the Commission is properly discharging its statutory functions relative to discriminatory housing practices. Absent identifying information, these reports are little more than raw data. If there are, in fact, patterns of discrimination in particular complexes, the public can most effectively determine if the Commission is discharging its enforcement duties through full disclosure. Thus, the public interest supporting disclosure is weighty indeed. Given the de minimus character of the privacy interests at stake, if there is any privacy interest at all, we believe that the latter is clearly outweighed by the former. Accordingly, we conclude that the Kentucky Commission on Human Rights improperly deleted the names and addresses of apartment complexes from multiple dwelling reports, and should immediately arrange for Mr. Geiger to inspect unredacted copies of these records.

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.






Distributed to:

Beverly Watts

Executive Director

Kentucky Commission on Human Rights

7th Floor, The Heyburn Building

332 West Broadway

Louisville, Kentucky 40202

James L. Thomerson

Stoll, Kennon & Park

Suite 1000

201 East Main Street

Lexington, Kentucky 40507-1380

Bob Geiger

The Lexington Herald-Leader

700 National Press Building

Washington, D. C. 20045