TO BE PUBLISHED
96-ORD-220
October 16, 1996
In re: Royden Cullinan/City of Louisville
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Louisville's denial of Royden Cullinan's August 26, 1996, requests to inspect, “City Hall sign-in logs maintained at the reception desk at the Sixth Street entrance to City Hall for the period January 1, 1996 to the present,” and “Board of Aldermen sign-in logs maintained at the Board of Aldermen reception desk for the period January 1, 1996 to the present.” On behalf of the City of Louisville, Senior Attorney Paul V. Guagliardo denied Mr. Cullinan's requests. In a letter dated August 29, 1996, Mr. Guagliardo asserted that Mr. Cullinan's “curiosity about citizens who have chosen to visit City Hall is an unwarranted invasion of personal privacy” within the contemplation of KRS 61.878(1)(a). Moreover, Mr. Guagliardo noted, the sign-in logs “are exempt [pursuant to KRS 61.878(1)(i)] as preliminary drafts, notes, correspondence with private individuals, other than correspondence intended to give notice of final action of a public agency.”
In a follow-up letter to this office, the City elaborated on its position. With respect to its reliance on KRS 61.878(1)(i), the City reasoned:
If the security guard or the receptionist jots down a citizen's name, it is a “draft” or “note.” If the citizen writes his own name, it is “correspondence with private individuals.” The notes are preliminary; they reflect no governmental action, final or otherwise. They do not purport to show all visits to City Hall or to the Board of Aldermen; similarly, a person who has signed the log did not necessarily complete his/her visit with anyone.
Citing Courier-Journal v. Jones, Ky.App., 895 S.W.2d 6 (1995), in which the Court of Appeals concluded that the Governor's appointment schedule is “nothing more than a draft of what may or may never take place; a notation for inter or intra office use . . . ,” and thus exempt pursuant to KRS 61.878(1)(i), the City advanced the same argument for withholding the sign-in logs.
The City also amplified on its argument that the visitor sign-in logs are exempt pursuant to KRS 61.878(1)(a). Noting that “the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity . . . ,” Kentucky Board of Examiners of Psychologists v. Courier-Journal, Ky., 826 S.W.2d 324, 328 (1992), the City maintained that “[t]he Cullinans' unseemly urge to pry into other citizens' affairs” will have a “chilling effect on visitor's [sic] First Amendment rights.” Applying the privacy analysis first articulated in Board of Examiners, and refined in Zink v. Commonwealth, Ky.App., 902 S.W.2d 825 (1994), the City argued that visitors to City Hall and the Board of Aldermen have a cognizable privacy interest in the sign-in log. The competing public interest in disclosure, the city asserted, is minimal. Disclosure would do little to “advance the underlying purpose of the Open Records Act, namely exposing agency action to public scrutiny.” Thus, the City of Louisville urged this office to issue a decision declaring that the visitors' privacy interest in the sign-in log is superior to the minimal public interest in disclosure.
We are asked to determine if the City of Louisville properly relied on KRS 61.878(1)(a) and (i) in denying Mr. Cullinan's requests for sign-in logs maintained by the City of Louisville and the Board of Aldermen. For the reasons set forth below, and upon the authorities cited, we conclude that the City's reliance on KRS 61.878(1)(i) was misplaced. Moreover, we find that although the City cannot properly invoke KRS 61.878(1)(a) to authorize wholesale nondisclosure of the visitors sign-in logs, it may, pursuant to KRS 61.878(4), redact individuals entries on the logs upon a showing that the public's interest in disclosure is outweighed by the visitor's privacy interest.
Although there are no decisions of this office, or reported caselaw, directly on point, we have, in recent years, declared that a visitors sign-in log at a correctional facility is not exempt from public inspection pursuant to KRS 61.878(1)(a). See, e.g., 93-ORD-102. At pages 3 and 4 of 93-ORD-102, we reasoned:
[After Board of Examiners, supra,] there is no blanket or per se applicability of KRS 61.878(1)(a) to a given category of records. Our decision in each case must be made by a comparative weighing of the antagonistic interests that exist in the specific situation.
In Kentucky Board of Examiners, supra, 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 life. The purpose and mission of a county jail, such as the Daviess County Detention Center, is to provide for the incarceration of prisoners arrested in the county or sentenced or held by order of the courts in the county. KRS 441.025(1). Given this mission statement, we are hard pressed to identify any public interest that would be served by release of the visitors log. The public interest in disclosure is therefore minimal at best.
The privacy interests of persons whose names appear on the log is also relatively insubstantial. As noted, this Office has previously recognized that “[t]he fact that knowledge of an inmate's incarceration may be embarrassing to them or to members of their family is of secondary importance.” [OAG 81-395, p. 1.] It is a small step to the conclusion that friends and family of an inmate who elect to visit him or her, and are required to register their names with the jail, have a minimal privacy interest in nondisclosure of their identities. Certainly, the fact of their visit does not touch upon the most intimate or personal features of their lives. Nor can we imagine why a law enforcement officer would have a privacy interest in these records. Presumably, the officer is merely discharging the duties for which he was employed. The privacy interests of all of the individuals whose names are found in the visitors log must therefore be characterized as insubstantial.
In Board of Examiners, supra at 327, the Supreme Court recognized that the Open Records Act “exhibits a general bias favoring disclosure.” Thus, when the privacy interest of the individual does not clearly outweigh the public's interest, the balance must be tipped in favor of disclosure. In the present appeal, neither the public's interest in disclosure of the visitors log nor the individual's interest in nondisclosure is manifestly superior. In view of the statute's general bias favoring disclosure, and in the absence of any direct evidence that release of the visitors log would constitute a clearly unwarranted invasion of personal privacy, we conclude that the Daviess County Detention Center erred in refusing to release the record under authority of KRS 61.878(1)(a).
We reached the same conclusion in 94-ORD-129, and again in 96-ORD-184.
On the other hand, this office, and the courts, have recognized that a public official's appointment schedule may be excluded from public inspection pursuant to KRS 61.878(1)(i). See 93-ORD-23; OAG 78-626; Courier-Journal v. Jones, supra. Although the Court of Appeals' decision in Courier-Journal v. Jones ultimately turned on the preliminary character of the schedule, the court quoted extensively from Times Mirror Co. v. Superior Court of Sacramento, 53 Cal.3d 1325, 283 Cal.Rptr. 893, 813 P.2d 240 (1991), a case in which the California Supreme Court focused on the need to preserve “governmental confidentiality,” thereby facilitating policy makers' “[a]ccess to a broad array of opinions and the freedom to seek all points of view, to exchange ideas, and to discuss policies in confidence.” Times Mirror at 813 P.2d 254. Acknowledging that California's Public Records Act is not identical in all respects to Kentucky's act, our court nevertheless adopted the logic of Times Mirror as the basis for its conclusion.
Balancing the public interest in disclosure against the public interest in nondisclosure, the Times Mirror court postulated “the public benefits accruing from disclosure”:
In politics, access is power in its purest form. Entrance to the executive office is the passport to influence in the decisions of government. The public's interest extends not only to the individual they elect as Governor, but to the individuals their Governor selects as advisors.
One could readily imagine additional public benefits accruing from disclosure of the governor's private itinerary, as well. It could be argued, for example, that the prospect of publicity would expand rather than contract the number and variety of persons meeting with the Governor. Disclosure might also reveal whether the Governor was, in fact, receiving a broad range of opinions, and ultimately whether the state's highest elected officer was attending diligently to the public business.
Times Mirror at 252, quoted in Courier-Journal v. Jones at 9.
Against this interest, the court weighed the competing interest in nondisclosure:
If the law required disclosure of a private meeting between the Governor and a politically unpopular or controversial group, that meeting might never occur. Compelled disclosure could thus devalue or eliminate altogether a particular viewpoint from the Governor's consideration. Even routine meetings between the Governor and other lawmakers, lobbyists or citizens' groups might be inhibited if the meetings were regularly revealed to the public and the participants routinely subjected to probing questions and scrutiny by the press.
Times Mirror at 251, quoted in Courier-Journal v. Jones at 8. Because access to a broad spectrum of persons and viewpoints “is essential to effective governance in a representative democracy,” the Times Mirror court concluded that the public interest in nondisclosure of the governor's appointment schedules “substantially outweighs the public interest in their disclosure.” Times Mirror at 254, quoted in Courier-Journal v. Jones at 9.
This office's earlier open records decision had anticipated this view. At page 6 of 93-ORD-25, we observed:
This Office has recognized that KRS 61.878(1)[i] and [j] are intended to insure the integrity of an agency's decision making process by protecting its pre-decisional documents. OAG 91-108. The purpose underlying these exceptions may thus be analogized to the purpose underlying the exception to the California Public Records Act which was deemed to authorize nondisclosure of the Governor's appointment calendar in Times Mirror Co., supra. Here, as in Times Mirror Co., disclosure of the Governor's schedule would jeopardize the decision-making process by inhibiting access to divergent opinions and by restricting the free exchange of ideas. To compel disclosure in this instance would be tantamount to depriving the Governor of one of the essential “tools” he uses “in hammering out official action.” OAG 78-626, at p. 2.
In a subsequent decision addressing the applicability of KRS 61.878(1)(a) to communications between private citizens and public agencies, we recognized that “individuals who communicate with a governmental agency to express their personal opinions do so with some expectation of privacy.” 94-ORD-45, p. 6. Citing a series of federal cases, to which there is no Kentucky analogue, we adopted the view 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 Association for Unification of World Christianity, Inc. v. U.S. Department of State, 526 F.Supp. 1022, 1034 (S.D.N.Y. 1981).
The visitor sign-in logs which are at issue in this appeal are neither “fish nor fowl.” They are functionally equivalent to a detention center sign-in log, but, as the cited authorities amply demonstrate, their disclosure implicates privacy considerations which are not implicated by the detention center log. They are not functionally equivalent to a public official's appointment calendar, but, again as the authorities demonstrate, their disclosure implicates privacy considerations which are also implicated by disclosure of the official's calendar. Therefore, none of the open records decisions cited heretofore are dispositive of this appeal.
We reject the city's argument that the sign-in logs are exempt pursuant to KRS 61.878(1)(i), authorizing nondisclosure of “[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency.” A sign-in log is not “a work paper, . . . preliminary draft, notebook or memorandum . . . which a public employee or officer uses in hammering out official action within the function of his office.” OAG 78-626, p. 2, quoted in Courier-Journal v. Jones at 8. Rather, it is a record showing visitors to City Hall “and other incidences occurring in its daily operations,” OAG 77-102, p. 2, and thus, no different than a police department dispatch log or blotter, which has “never been granted blanket exclusion from inspection by the public in this state.” OAG 89-20, p. 3; see also, OAG 82-70; 94-ORD-133.
Nor do we believe that the entries on the sign-in log can be properly characterized as “correspondence with private individuals.” In 94-ORD-20, this office applied the rule of statutory construction codified at KRS 446.080(4), which mandates that “words and phrases shall be construed according to the common and approved usage of language . . . ,” to the term “correspondence.” We concluded that the term, as it appears in KRS 61.878(1)(i) means “communication by exchange of letters,” or “the letters exchanged.” Webster's II New Riverside University Dictionary (1988). See also, 94-ORD-45. We do not believe that the term can be construed to apply to visitor entries on a sign-in log.
Whether the visitor sign-in log is shielded from disclosure, in its entirety, by KRS 61.878(1)(a) is a closer question. We do not share the City's view that disclosure of the log would serve no public purpose, and that the privacy interests of visitors to City Hall must therefore always prevail. As noted, disclosure might reveal whether public officials and employees are “attending diligently to the public business,” Times Mirror at 252, quoted in Courier-Journal v. Jones at 9, as well as who is afforded access to those officials and employees, and the range of opinions they represent. Id. On a less elevated plane, disclosure might reveal the identity of persons with whom the agency does business, employees of other governmental agencies discharging their duties, and sightseers. To compare this significant public interest to the National Star tabloid's claim of a “public interest in Roseanne's alien love-child,” as the City of Louisville has done, is to seriously devalue the spirit and intent of the Open Records Act.
Clearly, however, disclosure of the sign-in log implicates privacy interests similar to those implicated by disclosure of a public official's appointment calendar. As in Times Mirror, “disclosure of a private meeting between the . . . [official] and a politically unpopular or controversial group [could mean that] that meeting might never occur; [e]ven routine meetings between the [official] and . . . lawmakers, lobbyists or citizens' groups might be inhibited. . . .” Thus, “persons who call upon a public official may have a right of privacy as to their contact with that official.” OAG 78-626, p. 3.
In weighing these competing interests, we believe that a proper balance may be struck by recognizing that individual entries in the sign-in log may be exempt from disclosure pursuant to KRS 61.878(1)(a) [1], but not the log in its entirety. Consistent with the rule set forth in 94-ORD-133, relative to disclosure of entries on a dispatch log, we find that a “generic determination that certain categories of information are excluded from the mandatory disclosure provisions of the Open Records Law under . . . [the privacy exemption] does not satisfy the requirements of the law.” 94-ORD-133, p. 8. [2] For the reasons set forth above, we believe that the visitors sign-in log must be made available for inspection. The City of Louisville may comply with the inspection requirements of the Open Records Law by providing an unedited copy of the log, [3] or, if particular entries are properly excludable, by providing particularized justification for denial of access to those entries.
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.
Sincerely,
A. B. Chandler III
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
1122
Distributed to:
Royden K. Cullinan
1406 Browns Lane
Louisville, Kentucky 40207
Paul V. Guagliardo
Senior Attorney
City of Louisville
Department of Law
Room 200, City Hall
Louisville, Kentucky 40202-2771
[1] In 93-ORD-25, this office recognized that KRS 61.878(1)(d) might also authorize nondisclosure of parts of the Governor's schedule. That exemption permits public agencies to withhold:Public records pertaining to a prospective location of a business or industry where no previous public disclosure has been made of the business' or industry's interest in locating in, relocating within or expanding within the Commonwealth. This exemption shall not include those records pertaining to application to agencies for permits or licenses necessary to do business or to expand business operations within the state . . . [.]There we noted that the disputed record might contain entries relative to meetings with previously undisclosed business or industrial prospects. We believe that similar concerns may be implicated by disclosure of the visitors sign-in log.
[2] As we noted in 94-ORD-133, at pages 8 and 9: In reaching this decision, we are guided by several pertinent sections of the law, bearing in mind that the “basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest.” KRS 61.871. First of all, 61.880(2) mandates that the burden of proof in sustaining a public agency's denial of an open records request rests with the agency. Second, an agency can properly rely on KRS 61.878(1)(a) in withholding a record only if it can establish that the public's interest in release of that record is outweighed by the individual's privacy interest. Finally, KRS 61.878(4) makes explicit the requirement of particularized justification by providing, “If any public record contains material which is not excepted under [KRS 61.878], the public agency shall separate the excepted and make the nonexcepted material available for examination.”
[3] Thus, with respect to dispatch logs, we reasoned:Kentucky has no privacy statutes, and that the Open Records Law does not prohibit release of otherwise exempt records. Because the exceptions are permissive, and the custodian of records is not exposed to any penalty if he releases exempt records, a dispatch center must make its log available for inspection in an unedited form, or, if it elects to edit a particular entry, justify that withholding by reference to a specific statutory exception [and a brief explanation of how it applies to the record withheld]. 94-ORD-133, p. 7.