TO BE PUBLISHED
94-ORD-45
March 23, 1994
IN RE: Bryan Smeathers/City of Owensboro
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Bryan Smeathers to the City of Owensboro on December 22, 1993. Mr. Smeathers requested access to "call-in sheets," generated by the Owensboro City Commission in the course of its televised commission meetings, which document questions and comments phoned in by television viewers. The City Commission has apparently created a mechanism by which members of the public can participate in its public meetings, apart from the "open forum" portion of those meetings, by telephone. Through this medium, callers are permitted to publicly air their comments and questions without identifying themselves. The Commission does, however, maintain a record of each call. Those records reflect the date of the call, the name, address, and telephone number of the caller, a summary of the caller's comments or question, and a "followup" section. It appears that at the Commission's December 21, 1993, meeting, Mr. Smeathers was the subject of a number of calls from viewers. It is the unedited record reflecting each of these calls which he wishes to inspect.
On December 22, 1993, City Attorney David C. Fowler responded to Mr. Smeathers' request, advising him that the requested document is a "recorded memorandum or correspondence from a private individual, prepared by a city employee and transmitted to the Mayor on a written form for public discussion only of the particular question or comment submitted by that individual." Relying on KRS 61.878(1)(a) and (h), he argued that release of the record would constitute a clearly unwarranted invasion of the caller's personal privacy. In a
followup letter to Mr. Smeathers, and in response to an identical request subsequently submitted, Mr. Fowler elaborated on the City Commission's position:
Since you regularly attend City Commission meetings, you well know that the Mayor encourages questions, comments, and/or suggestions from the television viewing audience regarding issues of public concern, but does not disclose the identity of individuals who call. To do so would create a "chilling effect" that would discourage questions, constructive criticism and/or comments from City residents who might otherwise participate in the political process if they are guaranteed anonymity. As a former City Commission candidate, and by your actions and frequent criticism and comments through the media, you have subjected yourself to public scrutiny. You frequently address the City Commission during the "open forum" portion of the Commission meeting agenda on a variety of public issues, and therefore, call-in viewers have the right to criticize or comment about your statements or actions, in the same manner that they often comment on, applaud or criticize the actions of the City Commission.
Mr. Fowler agreed to release edited copies of the call-in sheets, after the caller's name, address, and phone number were deleted. This appeal followed.
In his letter of appeal to this Office, Mr. Smeathers invokes KRS 61.884, which provides:
Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878.
It is his position that he has "the right to know [his] accusers." In addition to his open records question, Mr. Smeathers raises a number of questions relating to the
propriety of interactive radio, CATV, or TV broadcasts of public meetings.
We are asked to determine if the Owensboro City Commission properly denied Mr. Smeathers' request for the call-in sheets generated in the course of its televised public meetings. For the reasons set forth below, and on the specific facts of this appeal, we conclude that the Commission improperly denied his request.
In OAG 78-522, this Office recognized that since the state's legislature "has not dictated to the various classes of cities procedural rules relating to the conduct of meet-
ings, . . . each legislative body must adopt its own rules of procedure." OAG 78-522, p. 2. Citing McQuillin, Mun.Corps., Vol. 4, 13-42, the Attorney General there observed:
In the absence of legal provisions or restrictions, a municipal legislative body may, from time to time, adopt and change its own rules or parliamentary usage as to procedure. . . . The council may abolish, suspend, modify or waive its own rules.
Id. At page 2 of the same opinion, we noted that members of the public have a right to attend all meetings of a city council or commission under the Open Meetings Law, particularly KRS 61.840, which provides:
No condition other than those required for the maintenance of order shall apply to the attendance of any member of the public at any meeting of a public agency. No person may be required to identify himself in order to attend any such meeting. All agencies shall provide meeting room conditions which insofar as is feasible allow effective public observation of the public meetings. All agencies shall permit news media coverage, including but not limited to recording and broadcasting.
The Open Meetings Law does not, however, address the propriety of televised public meetings, viewer call-in, and the ramifications thereof.
Although members of the public have no legal right to participate in public meetings under the Open Meetings Law, Kentucky's courts have recognized a "concurrent right freely to express any approval or disapproval of any action or course about to be taken." City of Lexington v. Davis, 310 Ky. 751, 221 S.W.2d 659, 661 (1949). The Owensboro City Commission affords citizens the opportunity to participate in its televised public meetings in the "open forum" portion of its meetings, and through viewer call-in. Viewer call-in, as we understand it, permits persons not in attendance to phone in their comments and questions. Those comments and questions are recorded on the call-in sheet by a city employee, and given to the Commission for public reading and discussion. While we question the soundness of this approach, in view of the obvious potential for the exercise of unfettered censorship of viewer comment, nothing in the Open Meetings Law prohibits the Commission from adopting such a practice. Under that Open Meetings Law, it need only adopt rules of procedure "for the maintenance of order . . . ." KRS 61.840.
In support of its decision to redact the names, addresses, and telephone numbers of viewers from the call-in sheets generated by the Commission in the course of its televised public meetings, Mr. Fowler invokes KRS 61.878(1)(a) and (h). Those exceptions authorize a public agency to withhold:
(a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy;
(h) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency[.]
This Office recently rejected the notion that the term correspondence could be read so broadly as to encompass a telephoned message which is reduced to writing. 94-ORD-20.
Consistent with the rule of statutory construction codified at KRS 446.080(4) that "words and phrases shall be construed according to the common and approved usage of language . . . ," we believe that the term "correspondence" in KRS 61.878(1)(h) means "communication by exchange of letters," or "the letters exchanged." Webster's II New Riverside University Dictionary (1988). We do not believe that the term can be construed to apply to telephoned comments or questions which are documented on a call-in sheet.
As its second line of defense, the Commission invokes KRS 61.878(1)(a), the privacy exception. In Kentucky Board of Examiners of Psychologists v. the 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, supra 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.
Kentucky Board of Examiners, supra at 327, 328. Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Kentucky Board of Examiners, supra at 328.
The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its
agencies are properly executing their statutory functions and its public servants are serving the public, and the individual's interest in the nondisclosure of records that touch upon the intimate or personal features of his or her life.
The law recognizes that individuals who communicate with a governmental agency to express their personal opinions generally do so with some expectation of privacy. Thus, in a line of federal cases, to which there is no Kentucky analogue, the courts have concluded that although the substance of their communications must be released, their identities may, in general, be withheld. Rural Housing Alliance v. U.S. Department of Agriculture, 498 F.2d 73 (D.C. Cir. 1974); Holy Spirit Association for Unification of World Christianity, Inc. v. U.S. Department of State, 526 F.Supp. 1022 (S.D.N.Y. 1981); Holy Spirit Association for Unification of World Christianity v. F.B.I., 683 F.2d 562 (D.C. Cir. 1982). Thus, in Holy Spirit Association v. Dept. of State, supra at 1034, the court observed:
The writers of these letters had some expectation of privacy, otherwise it is questionable that they would have confided their deep concern and their personal experiences and those of others to their senators . . . . The exposure of personal and unpleasant experiences . . . could embarrass the individual named.
In Holy Spirit Association v. F.B.I., supra at 563, 564, the court echoed this view:
Communications of the sort in issue in this case, whether made directly to the agency or made to the citizen's representative in Congress and subsequently forwarded to the law enforcement agency . . . will frequently contain information of an intensely personal sort relating to that person's social, personal, financial, or . . . family situation. In such cases, . . . the invasion of personal privacy resulting from disclosure would have serious consequences both for the individuals involved and for the general public . . . ."
These cases recognize that "there is a strong public interest in encouraging citizens to communicate their concerns regarding their communities to their elected representatives . . . [and that] [p]ublic disclosure of their identities would have the opposite result of discouraging such communication." Holy Spirit v. Dept. of State, supra at 1034.
In the present context, however, these cases are cited for purposes of contrast rather than comparison. The content of the communications recorded on the call-in sheets which are at issue in this appeal do not in any way touch upon the intimate or personal features of the callers' lives. Rather, two of the messages consist of little more than ridicule of Mr. Smeathers. The third is an entirely neutral request for confirmation of a statement made by Mr. Smeathers. Clearly, the privacy concerns of these callers can be accorded little weight. While the viewers may prefer the veil of anonymity afforded by telephone call-in, as opposed to public participation, we do not believe that the Owensboro City Commission can legitimately assert a substantial privacy interest on their behalf.
We acknowledge that the public's interest in disclosure of the identities of these particular callers is also minimal at best. Neither the Open Records nor the Open Meetings Laws vests Mr. Smeathers with "the right to know his accusers." It is the public's interest, and not Mr. Smeathers' personal interest, which must be advanced by release of the disputed records. Nevertheless, we can at least hope that release of the identities of the callers, in these particular circumstances, will discourage citizens from using the viewer call-in portion of the Commission's public meetings to irresponsibly vilify a fellow citizen. Consistent with the principle of strict construction of the exceptions to the Open Records Law, codified at KRS 61.871, and the court's decision in Board of Examiners, supra at 327, holding that the Law exhibits a bias in favor of disclosure, we conclude that the City Commission violated the Open Records Law in withholding the names, addresses, and telephone numbers of the callers whose comments were directed at Mr. Smeathers.
We do not, in so holding, establish a rule of general application for all call-in sheets maintained by the City Commission relative to its televised public meetings. Under the line of reasoning announced in the federal cases cited above, we concede that there may be occasions when the content of the calls touches upon the intimate or personal features of
the callers' lives. Nor do we mean to entirely discount Mr. Fowler's assertion that release of the callers' identities may effectively "chill" communication through this medium. These are legitimate concerns. We simply do not find that these concerns are implicated in the present appeal. The Owensboro City Commission is directed to make available for Mr. Smeathers' inspection unredacted copies of the three call-in sheets of which he was the subject.
In addition to the issue pertaining to the accessibility of the call-in sheets which we have attempted to resolve above, Mr. Smeathers presents questions involving both the Open Records Act and the Open Meetings Act which cannot be addressed in this decision.
Mr. Smeathers' letter of request of December 22, 1993 referred only to the telephone call-in sheets and the City of Owensboro's responses dealt with that issue. This Office, in a decision issued under the Open Records Act, cannot respond to questions and issues involving that Act when a request for particular documents has not been initially made to the public agency which has custody, control, or possession of those documents. KRS 61.880(2) deals with the Attorney General's role concerning an appeal under the Open Records Act.
As to any questions involving the Open Meetings Act, this decision cannot address those matters. Mr. Smeathers will have to follow the terms and provisions of that Act before this office can handle such issues.
The Kentucky Open Meetings Act (KRS 61.805 to KRS 61.850) was substantially amended by the 1992 Regular Session of the Kentucky General Assembly (1992 Acts, Chapter 162, HB 16). That legislation which became effective on July 14, 1992 includes provisions which must be followed before this office can render a decision.
A new section of the Open Meetings Act (KRS 61.846) requires that a person seeking enforcement of the Act first submit a written complaint to the presiding officer of the public agency suspected of violating the Act. The complaint shall state the circumstances which constitute the alleged violation and shall state what the public agency should do to remedy the alleged violation.
The public agency is required to respond in writing within three business days after the receipt of the complaint
and notify the complaining party of its decision. An agency's response denying the complaint's requirements for remedying the alleged violation shall include a statement of the specific statute or statutes supporting the public agency's denial and how that statute or statutes apply to the specific situation at hand.
If the complaining party wishes the Attorney General to review the public agency's denial, the complaining party shall send the Attorney General a copy of his written complaint and a copy of the written denial within 60 days from the receipt by the complaining party of that written denial by the public agency. If the public agency refuses to provide a written denial, the complaining party shall provide a copy of the written complaint to the Attorney General within 60 days from the date the written complaint was submitted to the presiding officer of the public agency. In his letter to the Attorney General the complaining party must include a written statement as to how the public agency failed to remedy the alleged violation.
Only by following the procedures outlined above and by sending this Office the required documents, can we issue a decision under the Open Meetings Act.
The City of Owensboro may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
THOMAS R. EMERSON
ASSISTANT ATTORNEY GENERAL
jgh/1802
Distributed to:
Mr. Bryan Smeathers
715 Kentucky Pkwy. 14
Owensboro, KY 42301
Mr. David Fowler
City Attorney
City of Owensboro
P. O. Box 847
Owensboro, KY 42302
Ms. Carol Blake
City Clerk
City of Owensboro
P. O. Box 847
Owensboro, KY 42302