NOT TO BE PUBLISHED
February 27, 1997
In re: Mark W. Pettinger/West Louisville Community Ministries
Open Records Decision
This matter comes to the Attorney General on appeal from the West Louisville Community Ministries's (WLCM) partial denial of the open records request of Mark W. Pettinger, News Reporter, WAVE-TV, for the following records relating to the City's Citizen Alert Cell Phone program:
A list of all persons who have received the telephones;
Copies of all the activity summary or billing statement for each cell phone, from the program's inception through September 30, 1996;
Financial records for the program (e. g., billing invoices, performance/financial audits), from the program's inception through September 30, 1996;
Police dispatch and/or 9-1-1 records related to calls placed from cell phones assigned from the Citizen Alert Cell Phone program.
The Citizens Alert program is a city-wide program, funded by the City, to promote prompt reporting of emergency situations to police, fire, emergency medical, and other crisis reaction entities. The program distributes approximately 320 specifically programmed, one-way cellular phones to trained private citizen volunteers who utilize the cell phones to report crimes and other emergency situations to the proper authorities. The cell phones are programmed with 911 and police telephone numbers. Volunteers can program one additional private number and can use the phone to make calls to that number up to fifteen minutes free air time per month.
Ms. Lisa Mattingly, Esq., Counsel for WLCM, in her initial response to the request, confirmed that an appointment had been set up for Mr. Pettinger to review the agency's records. Citing KRS 61.878(1)(a), she partially denied a portion of the request, stating that WLCM would not disclose the names, addresses, telephone numbers, or other personal information pertaining to the citizen volunteers, as disclosure of this information would constitute an unwarranted invasion of their personal privacy. She further informed him that some of the records may also be exempt under KRS 61.878(1)(h), pertaining to confidential informants to law enforcement agencies.
In a follow-up request to WLCM, dated January 29, 1997, Mr. Pettinger states, in relevant part:
The claims for exemption are ambiguous, and are subject to interpretation by the Kentucky Attorney General. However, at this point it will suffice to make records without that information available. Specifically; a list of the phone units (or corresponding phone numbers) which are assigned to citizen volunteers, itemized cell phone bills for those units, monthly verification or reconciliation statements for all cell phone usage, and incident reporting sheets used to gauge the program's performance.
In his letter of appeal to this office, also dated January 29, 1997, Mr. Pettinger states:
West Louisville Community Ministries seeks to exempt the names, addresses and telephone numbers of the volunteers to whom it has given cell phones to report crimes and other emergency situations to law enforcement personnel. As an incentive volunteers are given 15 minutes of free cell phones time to call one designated personal telephone number. This form of compensation, however small, would seem to strike down the claim of unwarranted invasion of personal privacy.
The second exemption suggests some of the volunteers are working as confidential informants to law enforcement agencies. After discussions with the City of Louisville Police Department I have found that not to be the case. The Louisville Police Department has no way to track or categorize emergency or non-emergency phone calls placed by volunteers with their issued cell phones.
Mr. Pettinger states that WLCM's claim of partial exemption from disclosure go to the heart of his inquiry and there is no way to measure the performance of this taxpayer supported program without the requested information.
On January 30, 1997, we sent a Notification of Receipt of Open Records Appeal to the WLCM and enclosed a copy of Mr. Pettinger's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Ms. Mattingly provided this office with a response to the issues raised in the appeal. In her response, Ms. Mattingly states that Mr. Pettinger reviewed WLCM records pertaining to Citizens Alert on January 31, 1997. The records did not include personal information about the volunteers. In support of WLCM's partial denial, Ms. Mattingly states:
The purpose of the Citizens Alert program is to promote prompt reporting of emergency situations. In evaluating WLCM's administration of this program, it would be relevant to the public interest to know such information as how many phones were in use, how many calls are being made and what the expenses of the program are. This information can be obtained without disclosing the names of the volunteers. For example, itemized reports pertaining to the cell phone usage with volunteer names blacked out could be reviewed. Other billings and financial records would yield relevant information. Disclosing the identities of the citizen volunteers would not add to an evaluation of how the program is working.
On the other hand, citizen volunteers have a recognized privacy interest in keeping their identities and other personal information confidential. There is no authority for Mr. Pettinger's suggestion that since the volunteers receive a limited amount of free air time they relinquish their personal privacy. They are clearly private citizen volunteers.
Additionally, since one of the contemplated uses of the phones is the reporting of crimes, volunteers have compelling safety interests in remaining unidentified to the public, so as to prevent possible retaliation. Safety concerns are properly factored into the evaluation of an individual's privacy interest.
We are asked to determine whether WLCM properly relied on KRS 61.878(1)(a) and KRS 61.878(1)(h) in partially denying Mr. Pettinger's request. For the reasons which follow, we conclude that the agency's partial denial of the requested records was consistent with provisions of the Open Records Act.
Among the documents which may be excluded from the mandatory disclosure provisions of the Open Records Law are:
Public records containing information of a personal nature where the disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
KRS 61.878(1)(a). In Kentucky Board of Examiners of Psychologists v Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the Kentucky Supreme Court analyzed this exception at length. Acknowledging that the Open Records Law exhibits a general bias favoring disclosure, Kentucky Board of Examiners, at 327, the Court formulated a balancing test to be used in assessing the propriety of an agency's invocation of the privacy exception. The court reasoned:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is clearly unwarranted is intrinsically situational, and can only be determined within a specific context.
The Supreme Court characterized these antagonistic interests as the public's interest in knowing whether its agencies are properly executing their statutory functions, and the individual's interest in the nondisclosure of records that touch upon the intimate or personal features of his or her life. The court concluded its analysis with the observation that the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity. Kentucky Board of Examiners, at 328.
The issue presented here is whether the WLCM properly invoked KRS 61.878(1)(a) in denying Mr. Pettinger's request for the names of the private citizens who have voluntarily agreed to participate in the Citizen Alert Program.
This office has consistently held that the public is entitled to the names of public employees. 93-ORD-35. This office has also consistently held that a contractor to governmental entity must accept certain necessary consequences of involvement in public affairs. Such a contractor, whether a corporation or an individual human being, runs the risk of closer public scrutiny than might otherwise be the case. 96-ORD-237.
In a similar vein, we have also recognized that where an agency is conducting the people's business, the public has a right to know the identity of the recipients of the benefits of the agency's program which outweighs any privacy interest of the recipients. OAG 80-310. Finally, we have noted that a business which seeks to avail itself of substantial public benefit runs the risk of closer public scrutiny and should therefore have a reduced expectation of privacy. OAG 91-105.
Here, we are dealing with private citizens that are voluntarily participating in a program funded by the City and administered by the WLCM. The only public benefit the volunteers arguably receive is 15 minutes of free cell phones time per month to call one designated private telephone number which is given as an incentive for participating in the program. Mr. Pettinger argues that this free air time received is a sufficient enough benefit to give the public a right to know the identity of the volunteers and strike down any claim that release of the volunteer's names would constitute an unwarranted invasion of their personal privacy.
The WLCM has agreed to let Mr. Pettinger inspect its records which disclose how many phones are in use, how many calls are being made, what the expenses of the program are, itemized reports pertaining to cell phone usage with the volunteer names blacked out, and other billings and financial records.
In support of its position that disclosure of the names would constitute an unwarranted invasion of personal privacy, the WLCM argues the volunteers are private citizens and the fact that they receive the limited free air time neither strips them of that status nor adds information that would inform the public as to how the program is working. In addition, the agency states that since one of the expected uses of the phones is the reporting of crimes, the volunteers would have a compelling safety interest in remaining unidentified, so as to prevent any possible retaliation.
It is the decision of this office that the agency has met its burden of establishing that disclosure of the names of the volunteers, under the facts of this case, would constitute an unwarranted invasion of their personal privacy and were properly withheld from disclosure under KRS 61.878(1)(a).
The nondisclosure is justified here because the volunteers would have an expectancy of privacy, particularly in instances when they are reporting crimes, to forestall possible retaliation. To disclose the names of all the volunteers and to masked out names in instances in which crimes are reported might still enable a person seeking retaliation to identify a volunteer's name or location in proximity to the scene of the crime. Additionally, the fact that the identity of a volunteer would be made public might have a negative impact on the effectiveness on the program by discouraging the volunteer to report a crime for fear of possible retaliation.
Accordingly, we find the WLCM's invocation of the privacy exemption was proper under these circumstances as the countervailing privacy interests outweigh the disclosure of the names, particularly where the alternative information made available to Mr. Pettinger provides an adequate basis for him and the public to monitor how the program is working and determine whether volunteers, in general, are abusing the free air time.
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
James M. Ringo
Assistant Attorney General
Mark W. Pettinger
725 South Floyd Street
Louisville KY 40232
Legal Aid Society
425 W. Muhammad Ali Blvd.
Louisville KY 40202