NOT TO BE PUBLISHED

96-ORD-238

November 11, 1996

In re: Gary Wadley/Jefferson County Air Pollution Control District

Open Records Decision

This matter comes to the Attorney General on appeal from the responses of the Jefferson County Air Pollution Control District to the open records requests of Mr. Gary Wadley for certain records of the District.

By letter dated September 20, 1996, Mr. Wadley requested to inspect a listing of phone numbers dialed from the second floor fax machine of the District for the past three years and a listing of the numbers for those long distance fax calls (for the same period) for which the District received compensation from its employees, the name of the employee (or others) that may have placed such calls, and any other information relating to such calls.

By letter dated September 23, 1996, Mr. Wadley requested a listing of phone numbers (Internet addresses) dialed from the District Internet account assigned to Mr. Jon Trout, Acting Director, Air Pollution Control District, over the past two years.

By letter dated September 25, 1996, Mr. Trout acknowledged receipt of the requests, informed Mr. Wadley that because of the press of business, he had been unable to prepare a proper response, and that a response would be forthcoming soon.

In his letter of appeal, dated October 10, 1996, Mr. Wadley argues that the intent of the Open Records Act is being subverted by the failure of the District to file a timely and substantive response.

On October 15, 1996, we sent the District a “Notification of Receipt of Open Records Appeal” and enclosed a copy of Mr. Wadley's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Trout provided this office with a response to the issue raised in the appeal. In his response, Mr. Trout states that the requests were complicated and required more than three business days for response and he had notified Mr. Wadley that the response would be coming soon. In addition to the above, Mr. Trout supplied this office with a copy of the District's subsequent substantive response to Mr. Wadley's requests, dated October 10, 1996.

In response to the September 20, 1996 request, the District provided Mr. Trout with a listing of all phone numbers dialed from the second floor fax machine for the past three years, with the exception of the names and phone numbers for all personal fax calls which were redacted on the basis they were information of a personal nature and exempt from disclosure under authority of KRS 61.878(1)(a).

Mr. Trout further explained that the District required the maker of the long distance fax call to reimburse the District, but it denied Mr. Wadley's request for a listing of the numbers for those long distance fax calls for which the District had received compensation from its employees. This denial, also, was based upon KRS 61.878(1)(a). The District argued that the privacy exemption “applies to a public employee's personal life but not to what he does while carrying on the public's business at public expense”and this request was not one for public records but for the personal records of certain public employees.

In response to the September 23, 1996 request, Mr. Trout provided Mr. Wadley with a listing of Internet addresses dialed and dates messages were sent from his assigned Internet account over the past two years that were made for District purposes and which were currently on his computer in his office or his laptop computer. The list included any addresses that were public or that were private but used for District purposes.

Subsequent to receipt of the District's response to the issue raised in the letter of appeal, Mr. Wadley, by letter dated October 17, 1996, requested this office to consider an additional issue in this appeal relating to the District's response to his request to inspect its fax records. In this letter, Mr. Wadley states:

I received the enclosed response to my information request concerning District fax records. I received Mr. Trout's reply after I sent my appeal of October 10, 1996 to you. Therefore, I appeal to the Attorney General and request a ruling as to the propriety of the District editing those numbers (and individuals) from these records for which the District has been compensated for personal facsimile calls.

We are asked to determine whether the District's responses to Mr. Wadley's requests violated the Open Records Act. For the reasons which follow, we conclude the responses were procedurally and substantively inconsistent with the Act.

We begin by noting that KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three working days, and indicate whether the request will be granted. If the agency denies all or any portion of the request, it must “include a statement of the specific exception authorizing the withholding of the record,” and briefly explain how the exception applies to the record withheld.

In general, a public agency cannot postpone or delay this statutory deadline. The burden on the agency to respond in three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5). Unless the person to whom the request is directed does not have custody and control of the records, or the records are in active use, in storage, or are not available, the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records. 93-ORD-134. If, on the other hand, the records are in use, in storage, or otherwise unavailable, the agency must “immediately so notify” the requester, and designate a place, time, and date for inspection “not to exceed” three days from receipt of the request, “unless a detailed explanation of the cause is given for further delay and the place, time and earliest date on which the public record will be available for inspection.” KRS 61.872(5).

The District's response to the effect that it was unable to prepare a proper response because of the press of business was insufficient to meet the requirements of KRS 61.880(1). Assuming that the District could justify this delay, it was nevertheless obligated to designate the place, time, and earliest date on which the records would be available for inspection. To this extent, its response was procedurally deficient.

Turning to the substantive issue, we conclude that the District improperly withheld the names and phone numbers for all personal fax calls which were of a personal nature and not for District purposes.

In OAG 86-21, we held that it was an improper use of the privacy exemption (KRS 61.878(1)(a)) to allow a public agency to refuse to release telephone numbers called by personnel of a public agency on public telephones merely by invoking the privacy exemption without any supporting explanation or reasons as to how the release of such telephone numbers will adversely affect the persons, group or businesses to whom the numbers belong. In that opinion, we stated:

There undoubtedly will be instances when there is a legitimate need by a public agency to keep telephone numbers it has called confidential. We think, however, that when those situations arise the burden should be on the public agency to justify, under the Open Records Act or some other legislative enactment, why the record with the telephone numbers should not be released.

OAG 86-21, at page 4.

Moreover, since public officials or employees are calling on telephones or fax machines of a public agency at the public's expense, it is presumed that some kind of public business is being conducted or some kind of public service is being rendered. Review of the fax transmission records would enable the public to monitor the use of equipment or services purchased or leased by a public agency with public funds for public purposes.

As stated in OAG 86-21, the “privacy exemption applies to an public employee's personal life but not to what he does while carrying on the public's business at public expense.” In the absence of a specific showing by the District why the records in question should not be released or how the privacy interests of the public employee outweighs the public's interest in knowing what its government is doing, we conclude that the District improperly redacted the names and phone numbers from its records of all personal facsimile calls made and for which it had been compensated. Accordingly, those names and numbers should be made available for Mr. Wadley's inspection.

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

1216

Distributed to:

Gary Wadley

119 East Burnett Avenue

Louisville KY 40208

Jonathan L. Trout

Secretary-Treasurer

Jefferson County Department of

Planning and Environmental Management

Air Pollution Control District

850 Barret Avenue

Louisville KY 40204