March 5, 1996

In re: The Ledger-Independent/City of Augusta


This matter comes to the Attorney General on appeal from the City of Augusta's denial of William Kelly's January 23, 1996, request to inspect records “identifying the names and addresses of all businesses or entities which have been loaned Community Development Block Grant funds by the City of Augusta.” Specifically, Mr. Kelly requested access to “the following information for each of these loans: the amount loaned, the total number and schedule of repayments, and the actual payment record of each loanee.” Mr. Kelly is a reporter for The Ledger-Independent, and his request was made under the Open Records Act.

On January 26, 1996, Michael E. Plummer, City Attorney for the City of Augusta, denied Mr. Kelly's request. Mr. Plummer stated:

In response to your letter requesting certain loan documents wherein the City of Augusta is a party, please be advised that these documents are exempt from K.R.S. 61-870 [sic], the Open Records Act, as they contain personal information regarding individual citizens, the disclosure of which would constitute an unwarranted invasion of privacy.

If you wish to see these records it will be necessary for you to obtain a court order, which would shield the City from liability which would ensure should be release these records on our own.

Thus, Mr. Plummer issued a blanket denial of Mr. Kelly's request.

In his letter of appeal, Mr. Kelly argues that the records he seeks involve the expenditure of public funds, and that the City's blanket denial of his request constitutes a violation of the Open Records Act. He explains:

The city provided these funds to certain citizens and businesses in the form of loans, which, I believe, would mean by definition that the funds belong to the city -- and thus the citizens -- until they are repaid in full.

Furthermore, Augusta City Council members have stated that all but about one of the CDBG loans the city has outstanding are delinquent. If the city chooses to withhold details of these loans from public scrutiny, then the citizens, on whose behalf the money was extended, have no way of learning how much of these public resources have been lost through “bad loans.” It is impossible for the taxpayers to give their input regarding this problem if they are kept uninformed.

I disagree with Mr. Plummer's blanket characterization of these records as “personal information.” The records I am seeking have nothing to do with confidential matters such as an individual's credit history or information of that nature.

By completely denying my request, it would seem that the city has taken the position that these citizens and businesses can borrow public funds and still enjoy the same privacy they would have by going to a private lender.

Moreover, he notes, the City violated the Act by failing to comply with KRS 61.880(1). The City failed to cite the specific exception authorizing disclosure and briefly explain how it applies to the records withheld. He urges this office to issue a decision consistent with these views.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

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.

Although the City of Augusta responded in a timely fashion to Mr. Kelly's request and recited the language of the exception codified at KRS 61.878(1)(a), the City did not provide a citation to the specific exception authorizing disclosure. Nor did the City offer any explanation of how the exception applied to the records withheld. This office has long recognized that mere invocation of an exception to public inspection, without a supporting explanation, does not satisfy the procedural requirements of the Open Records Act. See, e.g., 94-ORD-155.

Turning to the substantive issues in this appeal, we find that the City of Augusta failed to meet its statutory burden of proof in sustaining its denial of Mr. Kelly's request. KRS 61.880(2)(c) provides, in part:

The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.

(Emphasis added.) As noted, the City referenced, without specifically citing, KRS 61.878(1)(a), which excludes from public inspection, “[p]ublic records containing information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” The City offered no written explanation of how disclosure of records relating to Community Development Block Grants would constitute an unwarranted invasion of privacy. Based on the City's response, we are unable to ascertain if those records contain information of a personal nature, and if disclosure is nevertheless warranted because the public's interest in disclosure is superior to the privacy interests involved. Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1995). We are left with no alternative but to find that the City of Augusta's response was substantively deficient, and to order disclosure of the records previously withheld.

We believe that disclosure of records relating to Community Development Block Grant funds is mandated by the Open Records Act. This office has, in general, recognized that “[a]mounts paid from public coffers are perhaps uniquely of public concern . . . [and] the public is entitled to inspect records documenting exact amounts paid from public monies . . . .” OAG 90-30, p. 3. Stated alternatively, where public funds go, the public's interest follows. We have been advised by Paul Mitchell, Assistant Director of the Department of Local Government's Division of Community Development Block Grants, which oversees distribution of these funds, that funds have been allocated to the City of Augusta and Bracken County for the following projects:

City of Augusta Regional Water Treatment Plant

Bracken County Water Line Extension Project

Bracken County Industrial Park Improvement Project

Assuming for the sake of argument that grants issued for other projects, such as housing projects, might implicate privacy concerns, those concerns are not present in this appeal. It is difficult to conceive of how records relating to funds allocated for water treatment plants, water line extensions, and industrial park improvements could contain information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Accordingly, we find that the City of Augusta violated the Open Records Act in denying Mr. Kelly's request.

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:

Michael E. Plummer

City Attorney

City of Augusta

The Carroll House

216 E. Fourth Street

Covington KY 41011

William Kelly

The Ledger-Independent

41-43 W. 2nd Street

Maysville KY 41056

Louis Habermehl, Mayor

City of Augusta

219 Main Street

P. O. Box 85

Augusta KY 41002