TO BE PUBLISHED 

 

 

 

 

 

 

 

94-ORD-143

 

December 1, 1994

 

 

 

 

 

 

IN RE: Bob Hensley/Lexington-Fayette Urban County Government

 

 

OPEN RECORDS DECISION

 

This appeal originated in a request to inspect public records submitted by Mr. Bob Hensley, a reporter for WTVQ-TV, to the Lexington-Fayette Urban County Government on August 9, 1994. Mr. Hensley requested a copy of the "Application for the Operation of an Alarm System within Fayette County" submitted for the Headley-Whitney Museum. On behalf of the Lexington- Fayette Urban County Government, Ms. Theresa L. Holmes, Corporate Counsel, responded to Mr. Hensley's request, advising him that although a redacted copy of the application was inadvertently released to him, this copy should not have been released. Ms. Holmes noted that pursuant to Lexington-Fayette County Code, Section 13-73-i, all information collected as a result of the alarm ordinance is confidential. Moreover, she observed, names, addresses, and telephone numbers of the emergency contacts which appear on the applications are excluded from public inspection by operation of KRS 61.878(1)(a) because they constitute information of a personal nature the disclosure of which would constitute an unwarranted invasion of personal privacy.

 

In his letter of appeal to this office, Mr. Hensley strenuously objects to LFUCG's denial of his request. He

contrasts the relatively innocuous information which appears on the application with information which is ostensibly more personal but nevertheless available for public inspection, such as the identities of rape victims. He questions "just how personal this information is." Many residents and businesses, Mr. Hensley observes, make public the fact that the premises are protected by a security system by erecting signs or posting notice in a prominent place. Moreover, when the alarms are activated, this fact may be broadcast on police scanners and monitored by the public. Finally, he notes, there is a compelling public interest in disclosure of the applications, to wit, it is the police, at public expense, who respond to alarms, many of which are false alarms. In his view, the public's compelling interest in ascertaining who has an alarm system, and whether that system is being properly regulated, clearly outweighs the privacy interests of persons who submit an application to operate an alarm system.

 

We are asked to determine if the Lexington-Fayette Urban County Government violated the Open Records Act in denying Mr. Hensley's request for the "Application to Operate an Alarm System" submitted by the Headley-Whitney Museum. For the reasons set forth below, we conclude that although the names and telephone numbers of the individuals designated to receive emergency notification which appear on the application may be redacted pursuant to KRS 61.878(1)(a), LFUCG otherwise improperly denied Mr. Hensley's request.

 

We begin by noting that the Attorney General has consistently recognized that a public agency cannot, by ordinance or any other legislative device, regulate access to public records in a manner which conflicts with the Open Records Act. OAG 82-435; OAG 82-518; 92-ORD-1136. In OAG 82-435, at page 2 we observed:

 

In enacting the Open Records Law, KRS 61.870-61.884, the General Assembly has preempted the field of the inspection of public records. A city cannot by ordinance make records confidential or exempt from public inspection unless the particular records come under one of the exemptions from mandatory public inspection provided by KRS 61.878.

 

See also, OAG 82-518, p. 1 ("The Mayor does not have the authority to countermand the requirements of the Open Records Law.") Hence, the existence of an LFUCG ordinance prohibiting

the release of information which appears on the applications, has no bearing on the resolution of this appeal. This portion of the ordinance is effectively a nullity, at least insofar as it relates to the Open Records Act.

 

Whether the information which appears on the application is protected by the privacy exception is a closer question. This office has frequently applied the balancing test mandated by the Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324 (1992), in analyzing the propriety of an agency's invocation of the privacy exception. In that case, the court observed:

 

[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.

 

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." Board of Examiners, supra, at 328. As a result, there is in general no blanket or per se applicability of KRS 61.878(1)(a) to a given category of records.

 

In 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 function, and the individual's interest in the nondisclosure of records containing information of a personal nature. Pursuant to Section 13-73 of the Lexington- Fayette County Code, the division of police is charged with the responsibility of approving applications for the installation of an alarm system. In the event that five or more false alarms are

activated at a permitted location within a ninety-day period, the "alarm officer" must serve the permittee with a written order of suspension, and the permittee must discontinue use of the alarm system. The public thus has a demonstrable interest in ascertaining whether the division of police is properly executing its regulatory function relative to alarm systems. As a point of departure, the public must ascertain who has submitted an application and been issued a permit to operate a system.

 

The privacy interests of individuals who submit applications to install alarm systems is equally weighty. The installation of an alarm system suggests the presence of something of value on the premises which warrants protection. The system may also be installed as a personal security measure. Nevertheless, we believe that the knowledge that an alarm system has been installed is, if anything, more likely to operate as a deterrent to crime. The fact that the premises are protected by an alarm system is frequently made known through the posting of notice and the erecting of signs suggests that such knowledge had a deterrent effect. We therefore cannot discern how the effectiveness of the alarm system will be reduced, and the privacy interests of the individual submitting an application to operate the system invaded, if those applications are made available for public inspection. In our view, the public's interest in disclosure is superior to the individual's right of privacy.

 

Pursuant to KRS 61.880(2)(c), we have reviewed the application which lies at the heart of this controversy, along with several other applications submitted to the division of police. The application identifies the alarm location address, the nature of the location (i.e., residence or business), and the business or resident's name and phone number. The application also identifies the type of alarm (i.e., burglar, hold-up, silent, or audible), and the name, address, and phone number of the alarm company. Finally, it identifies three individuals who have agreed to be notified in the event of an emergency, and the phone numbers of those individuals. The applicant's signature and the date appear at the bottom of the application. While we believe that the public's interest in determining whether the division of police is discharging its regulatory function is served by the release of the identity of the applicant, the premises protected, the type of alarm, and the name of the alarm company, we acknowledge that there may be occasions when the public's interest in disclosure of the names of persons on the emergency notification list would not outweigh those individuals' privacy interest. In many instances, this information would have little or no bearing on the question of whether the public agency

is properly executing its regulatory function. Thus, the individuals' interest might arguably outweigh the public's interest in disclosure. However, in the present appeal, LFUCG has not sustained its statutory burden of proof relative to the nondisclosure of names of persons on the emergency notification list pursuant to KRS 61.878(1)(a). While, as noted, we cannot discern how this information bears on the issue of whether the division of police is discharging its duty vis-a-vis alarm systems, LFUCG has failed to identify with any specificity the nature of the privacy interest implicated by its release. While we believe that these individuals may have a cognizable privacy interest, LFUCG has not substantiated its denial in terms of the requirements of the statute, i.e., by identifying what those privacy interests are in this specific case. Thus, it has failed to meet its statutory burden of proof, and must disclose the contents of the application in its entirety. KRS 61.880(2)(c); KRS 61.882(3).

 

The Lexington-Fayette Urban County Government and Mr. Hensley may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court, but may not be named as a party in that action or in any subsequent proceedings.

 

Chris Gorman

Attorney General

 

 

 

Amye B. Majors

Assistant Attorney General

 

res/1037

 

Distributed to:

 

Hon. Theresa L. Holmes

Lexington Fayette Urban County Government

200 East Main Street

Lexington, Kentucky 40507

 

Mr. Bob Hensley

WTVQ-TV

P.O. Box 5590

Lexington, Kentucky 40555