NOT TO BE PUBLISHED

96-ORD-13

January 18, 1996

In re: Janie Lopez/Division of Licensing and Regulation

OPEN RECORDS DECISION

This matter comes before the Attorney General on appeal from the Division of Licensing and Regulation, Cabinet for Human Resources's (hereafter “Division”) denial of Ms. Janie Lopez's open records request for copies of certain information from the current Nurse Aide Registry.

By letter dated July 17, 1995, Ms. Lopez, Representative, LOCAL 227 UFCW, requested the following information from the current Nurse Aide Registry:

For those individuals on the registry who are Jefferson County residents:

1. Name,

2. Address,

3. Date placed on the Nurse Aide Registry, and

4. Place of employment (if available).

By letter dated July 20, 1995, Mr. Timothy L. Veno, Director, Division of Licensing and Regulation, responded on behalf of the Division. In his response, Mr. Veno stated: Your request for information pertaining to the Certified Nurse Aide Registry of Kentucky has been received by this Division.

On advice of counsel, we deny your request inasmuch as it relates to home mailing addresses because disclosure would constitute a clearly unwarranted invasion of personal privacy and is, therefore, exempt from disclosure under KRS 61.878(1)(a), which provides that:

The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:

Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.

Also, this office has no record of the place of employment. Please contact us again if you should wish to amend your request.

This office is asked to determine if the Division correctly denied Ms. Lopez's request. For the reasons which follow, we conclude that the Division's denial of the requested records was proper and consistent with the Open Records Act.

In a recent decision, this office analyzed in considerable depth the propriety of a public agency's invocation of KRS 61.878(1)(a), the privacy exception, to support its denial of a request for public records by a requester whose stated purpose was a commercial one. 95-ORD-151. There, we concluded that in view of the negligible Open Records Act related public interest in disclosure, the agency's reliance on the privacy exception was justified. A copy of that decision is attached hereto, andincorporated by reference. We believe that 95-ORD-151 is dispositive of the instant appeal.

In 95-ORD-151, the Attorney General surveyed the evolution of the privacy exception, culminating in the Court of Appeals' recent decision in Zink v. Commonwealth of Kentucky, Ky.App., 902 S.W.2d 825 (1994). Finding that information such as home address, telephone number, and social security number is “generally accepted by society as details in which an individual has at least some expectation of privacy,” Zink at 828, the Zink court focused on the second part of the two part privacy analysis: whether an invasion of this privacy interest is warranted by a superior public interest in disclosure. The court observed:

While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. This is the approach the United States Supreme Court has taken in a similar analysis of requests under the Freedom of Information Act (FOIA). See Dept. Of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 774-75. 109 S.Ct. 1468, 1482-83, 103 L.Ed.2d 774, 796-97 (1989). As stated in Board of Examiners [of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 327 (1992)], “[t]he 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.” 826 S.W.2d at 328. At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated invarious government files that reveals little or nothing about an agency's own conduct.

Zink at 828, 829. In construing the Zink opinion, this office recognized that, “[i]f the nature of the request is unrelated to the fundamental purpose of the Open Records Act, then countervailing interests, such as privacy, must prevail.” 95-ORD-151, p. 9. Thus, what may have been implicit in the law before Zink, is explicit in the law after Zink.

At page 9 of 95-ORD-151, this office adopted the bright line test developed by the Zink court, and applied it to the facts involved in that appeal:

If the nature of the request is unrelated to the fundamental purpose of the Open Records Act, then countervailing interests, such as privacy, must prevail. Given the cognizable privacy interest of the vehicle owner in the nondisclosure of her home address and social security number, and the absence of any public interest, i.e., an interest that will advance the purpose of the Act by exposing public agency action to public scrutiny, we find that the privacy interests outweigh the non-open records act related public interest in disclosure.

In Zink, the requester sought to inspect certain injury forms filed with the Department of Workers' Claims which included personal information concerning the injured employee such as name, home address, telephone number, date of birth, social security number, marital status, wage rate , and number of dependents. He indicated he sought to use the information provided by the forms to target direct mail solicitations to potential clients.

In pursuing its comparative weighing of antagonistic interests in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good, the court in Zink stated:

The relevant public interest supporting disclosure in this instance is nominal at best. Disclosure of the information appellant seeks would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny.While there may be some merit to appellant's assertion that the broad public interest would be served by the dissemination of information to injured workers regarding their legal rights under the workers' compensation statutes, this cannot be said to further the principal purpose of the Open Records Act.

Applying the Zink test to the facts before us, we reach the same conclusion. In the instant situation, Ms. Lopez is seeking a copy of the current Certified Nurse Aide Registry which, among other things, contains the home addresses of the Nurse Aides. The Division denied Ms. Lopez's request “inasmuch as it relates to home mailing addresses because disclosure would constitute a clearly unwarranted invasion of personal privacy.”

As noted above, the public's right to know under the Open Records Act is premised upon its right to expect its agencies properly to execute their statutory functions. Providing access to the home addresses of the nurse aides would reveal little or nothing about either the conduct or functioning of the Division or the professional performance of the listed nurse aides.

Because the privacy interests of the nurse aides in their home addresses outweigh the negligible Open Records Act related public interest in disclosure, it is the decision of this office that disclosure of the home addresses would constitute a “clearly unwarranted invasion of personal privacy” under KRS 61.878(1)(a). Accordingly, we conclude that the Division properly denied Ms. Lopez access to the home addresses of the members listed in the Certified Nurse Aide Registry.

Finally, in its response, the Division indicated that it had no record of the place of employment of the individuals on the Registry. In her letter of appeal, Ms. Lopez cites several prior opinions of this office to support her position that she be given access to the home addresses on the Registry. In particular, Ms. Lopez cites OAG 79-275 and OAG 82-394.

In OAG 79-275, this office, in relation to a request to inspect records of licensing boards, held that the public is entitled to the names and business addressesof licensees, but if a licensing board wants to withhold the home addresses and other private data about a licensee, it may do so under KRS 61.878(1)(a).

In OAG 82-394, this office considered an appeal in which the Kentucky Board of Nursing denied a request for access to a list of the names and addresses of currently licensed registered nurses and practical nurses in Kentucky. In deciding that the Board should make available the names and addresses of all licensed nurses, we stated, in relevant part:

The purpose of licensing professions, such as nursing, is to protect the public, and the public is entitled to know who the licensees are. The public is also entitled to know the address of each licensee and if the only address which the board has for a licensee is a home address, the privacy exemption will not apply to that licensee. (The analogy between a licensee and a state employee as to home address breaks down if the licensee does not have a work address on file with the board. Cf. OAG 76-717).

When a public agency maintains a record of the work addresses or places of employment of public employees, those records will be subject to public disclosure. In OAG 79-275, this Office recognized that the public has a right to know the names and business addresses of public licensees. OAG 82-394 expanded the holding in OAG 79-275 by finding that if a licensing board maintained a record of work addresses and did not have a work address for a licensee on file, the privacy exemption did not apply to that licensee's home address, where it was used as the licensee's work address.

As stated in its response, the Division had no record of the place of employment of the individuals on the nurse aide registry. Thus, under the facts of this case, all the addresses are categorized as “home addresses.” In such posture, Ms. Lopez's request amounts to a request for information of a “personal nature” in which the individuals may have at least some expectation of privacy. Based on the analysis to be applied to home addresses as directed by Zink, the nurse aides have a cognizable privacy interest in their home addresses which may be withheld if there is no overriding open records related public interest in disclosure, as is the situation here. Accordingly, we conclude that the Division properly relied upon KRS 61.878(1)(a) in withholding disclosure of the home addresses.

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

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

JMR/1038

Distributed to:

Timothy Veno

Inspector General

Cabinet for Human Resources

275 East Main Street

Frankfort, KY 40601

Janie Lopez

Representative

Local 227 UFCW

Louisville, Kentucky 40210