AND CHRISTOPHE G. STEWART; AND SAMUEL T. DAVENPORT v. UNIVERSITY OF LOUISVILLE
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RENDERED:
AUGUST 2, 2002; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2001-CA-000980-MR
AND
2001-CA-001063-MR
NO.
CHRISTOPHE G. STEWART; AND
SAMUEL T. DAVENPORT
v.
APPELLANTS/CROSS-APPELLEES
APPEAL AND CROSS-APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 00-CI-003133
UNIVERSITY OF LOUISVILLE
APPELLEE/CROSS-APPELLANT
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, KNOPF, AND McANULTY, JUDGES.
McANULTY, JUDGE: This is an appeal of an open records dispute
between Christophe G. Stewart and Samuel T. Davenport and the
University of Louisville (hereinafter U of L).
Appellants appeal
the denial of disclosure of personal files of a U of L employee
contained on a university-owned computer.
We affirm.
Stewart is an attorney who represents Davenport in what
appellants describe as acrimonious litigation with his former
girlfriend, Brenda Lynn Overstreet.
at U of L as a secretary.
Ms. Overstreet is employed
On January 20, 2000, Stewart filed an
open records request with U of L, seeking various records
pertaining to her employment as well as personal information
contained on her computer.
The latter request, the basis for
this appeal, was as follows:
6. A copy of any and all personal information
on the computer used by Brenda Lynn
Overstreet and any and all disks, hard
drives, tape drives or otherwise recorded.
The request is specifically not asking for
any University of Louisville records or
business or academic documents.
U of L’s custodian of records initially responded to the request
by inquiring of Stewart whether the request was made on behalf of
Ms. Overstreet, and by informing him that the records were in the
process of being identified and the request would take more time
to complete because some were in off-site storage.
Stewart responded that U of L’s response was inadequate
and in violation of the Open Records Act.
In addition, Stewart
stated in the letter that he hoped Ms. Overstreet had not been
informed regarding the request for her personal information.
On
January 31, 2000, the records custodian at U of L responded to
the open records request.
He stated which portions of the
request would be granted and which would be denied, and the bases
for denial.
With regard to request number 6, above, dealing with
Ms. Overstreet’s personal information, he stated:
If Ms. Overstreet happened to have any
personal files on her office computer, I
strongly believe they would not be accessible
under the statute. For one thing, it is
difficult for me to see such records as
“public records” under the statute. And in
any case, the “public disclosure” of such
records, it seems to me, “would constitute a
clearly unwarranted invasion of personal
privacy” (KRS 61.878(1)(a)). Therefore I am
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denying your request to inspect any personal
records that may have been created by Ms.
Overstreet.
The next day, the records custodian was informed by Ms.
Overstreet’s attorney that she was in litigation with Davenport
who was represented by Stewart.
The records custodian then
informed Stewart that he was denying the request in its entirety
because the Open Records Act could not be used by a party to
litigation.
Stewart appealed U of L’s decision to the Attorney
General pursuant to KRS 61.880(2).
On April 30, 2000, the
Attorney General issued an Open Records Decision (00-ORD-97) and
concluded that U of L’s reliance on KRS 61.878(1), the exemption
dealing with litigation, and KRS 61.878(1)(a), the privacy
exemption, was misplaced.
With regard to Ms. Overstreet’s
personal files, the Attorney General found no privacy right.
Solely referencing prior Attorney General opinions, the Attorney
General concluded that a “compelling public interest” was served
by disclosure of personal files on University-owned computers.
The Attorney General stated that U of L might withhold some files
if it identified a privacy interest superior to the public’s
interest in disclosure “after reviewing Ms. Overstreet’s personal
files on her office computer.”
The Attorney General stated that
“wholesale nondisclosure” of the files was not authorized and it
was incumbent on U of L to articulate a basis for denying access
to Ms. Overstreet’s individual personal files.
U of L appealed this decision by initiating action in
the Jefferson Circuit Court pursuant to KRS 61.880(5).
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KRS
61.882(3) provides that in an appeal of a determination by the
Attorney General’s office, an agency has the burden of proof to
resist disclosure.
U of L moved for summary judgment.
U of L
argued in a memorandum supporting the motion that the appellants’
open records requests had nothing to do with a public interest in
government accountability, that the Attorney General relied not
on the law but on inconsistent opinions from his office, and that
his opinion rendered the privacy exemption meaningless.
U of L
argued that requests for personal matters require a balancing of
the privacy interest versus the public’s right to know.
U of L
stated that there was no reason to believe that Ms. Overstreet
was violating any University policy regarding computer use.
On November, 30, 2000, the trial court entered an order
denying the motion for summary judgment and affirming the Open
Records Decision, 00-ORD-97.
The court determined that U of L
could not rely on a litigation exception to deny all of the open
records request.1
With regard to the personal information on Ms.
Overstreet’s computer, the court ordered U of L to review the
information to determine if the release of her personal
information would constitute a clearly unwarranted invasion of
privacy.
U of L filed a motion to reconsider with regard to the
personal files only.
U of L argued that requiring agencies to
search employee’s personal files for personal matters in response
1
U of L does not appeal the trial court’s determination
with regard to a litigation exception in the Open Records Act,
following the Kentucky Supreme Court’s February 2001 opinion,
Kentucky Lottery Corp. v. Stewart, 41 S.W.3d 860 (2001), which
was dispositive of the issue.
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to an open records request was unduly burdensome as well as a
“terrible invasion of the privacy of public employees.”
U of L
argued that the search ordered was not required by the applicable
case law, which only required courts to take an overview of the
material rather than an individual determination.
U of L
asserted that it had no express policy to forbid an employee’s
use of “a University computer to create, send or store a personal
record.”
U of L argued, therefore, that employees have a
legitimate expectation of privacy where no workplace rule was
violated.
On March 15, 2001, the trial court entered an order in
which it determined that appellants’ request was beyond the scope
of the Open Records Act.
The court held that it would not
require agency employees to “go on a fishing expedition” into Ms.
Overstreet’s personal files.
Appellants appeal this order.
Appellants argue simply that if Ms. Overstreet used
state-owned equipment for personal matters, the Open Records Act
affords no protection from disclosure.
Appellants cite only an
Attorney General opinion, 99-ORD-112, in which the Attorney
General asserted that records obtained on public time and on
public equipment were in his view public records.
99-ORD-112
dealt with an issue whether pornographic material obtained by a
public employee via a state-owned computer was subject to
disclosure.
We do not think that the position taken by the Attorney
General adequately addresses the law regarding personal matters
in public records.
The Attorney General’s conclusion that any
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files on the computer are public records2 does not complete the
inquiry.
Moreover, appellants’ reliance on that opinion is
misplaced because the case law regarding open records is
controlling over the opinions of the Attorney General.
Under the privacy exemption of KRS 61.878(1)(a), public
records “containing information of a personal nature where the
public disclosure thereof would constitute a clearly unwarranted
invasion of personal privacy” are excluded from the disclosure
requirements of the Open Records Act.
A plain reading of subsection (1)(a) reveals
an unequivocal legislative intention that
certain records, albeit they are "public,"
are not subject to inspection, because
disclosure would constitute a clearly
unwarranted invasion of personal privacy.
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal,
Ky., 826 S.W.2d 324, 327 (1992).
Therefore, the first issue to
determine is whether the items requested are “of a personal
nature.”
In this case, the trial court correctly determined that
the information requested was personal in nature.
The request
only asked for any personal files Ms. Overstreet may have
created, and specifically excluded any files relating to the
business of the university.
Appellants have not shown that the
records are in any way not “personal.”
They merely state that
the records would have been created with public equipment.
2
That
“Public record” is defined in the Open Records Act as,
“all books, papers, maps, photographs, cards, tapes, discs,
diskettes, recordings, software, or other documentation
regardless of physical form or characteristics, which are
prepared, owned, used, in the possession of or retained by a
public agency.” KRS 61.870(2). KRS 61.872(l) provides, in
pertinent part, that "All public records shall be open for
inspection by any person, except as otherwise provided by KRS
61.870 to 61.884[.]”
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has nothing to do with the nature of the files themselves.
Therefore, we agree with the trial court that this part of the
inquiry was met.
Next, the Kentucky Supreme Court established in Board
of Examiners that the exemption for personal matters involves a
balancing test.
The Court stated that the Open Records Act
reflects an interest in the protection of personal privacy as
well as a general bias in favor of disclosure of public records.
Id. at 327.
To give effect to these interests, the Court found
that the only mode of decision is “by comparative weighing of the
antagonistic interests.”
Id.
The Court explained:
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.
Id. at 327-328.
The Court held that the public's "right to know"
under the Open Records Act is premised upon the public's right to
expect public
functions.
agencies properly to execute their statutory
Id. at 328.
While it is true that the analysis "does not turn on
the purposes for which the request for information is made or the
identity of the person making the request," it is relevant to
consider the extent to which disclosure would serve the principal
purpose of the Open Records Act.
Zink v. Commonwealth, Dep’t of
Workers' Claims, Labor Cabinet, Ky. App., 902 S.W.2d 825, 828
(1994).
The citizens' right to be informed as to what their
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government is doing forms the basic purpose of disclosure.
Id.
The purpose of disclosure is not fostered, however, by disclosure
of information about private citizens accumulated in various
government files that reveals little or nothing about an agency's
conduct.
Id.
The trial court found that there was no evidence that
Ms. Overstreet was abusing her public time or public resources.
Additionally, the court found that there was no allegation that
she was told that she was prohibited from using her computer for
non-governmental purposes, particularly when she was not on the
clock.
The court found that the request for personal information
was "beyond the scope and purpose of the Open Records Act."
We agree with the trial court's weighing of the interests in
this case.
sought.
There was no public interest shown in the materials
There is no issue of misuse of public equipment or time;
U of L has stated that it has no policy against the use of its
state owned equipment for personal reasons.
In the absence of
any indication that Ms. Overstreet misused public equipment,
appellants’ claim on appeal that the public has a right to know
how Ms. Overstreet is using public equipment rings hollow.
Appellants have expressed no genuine public interest in
Ms. Overstreet’s files.
However, U of L has articulated a
personal privacy interest on behalf of Ms. Overstreet.
We agree
with the trial court that these circumstances did not require a
search by U of L as to their content.
Given the fact that no
public interest has been shown, we find no statutory basis for
appellants’ argument that the trial court should have inspected
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those records to see what they contain.
Therefore, we affirm the
trial court’s decision to deny the disclosure of the documents.
Cross-Appeal
U of L cross-appeals as to the trial court’s
determination of an award of costs against it for “willful”
withholding of records.
KRS 61.882(5) permits an award of costs,
including reasonable attorney’s fees, to a party who prevails
against an agency in an action in the courts regarding a
“willful” violation of the Open Records Act.
Additionally, that
section gives the court discretion “to award the person an amount
not to exceed twenty-five dollars ($25) for each day that he was
denied the right to inspect or copy said public record.”
The
trial court in this case denied costs as to the materials
exempted by the privacy exception, but awarded costs as to the
materials which U of L denied pursuant to a litigation exception.
The trial court granted appellants $12.50 per day from November
30, 2000 — the date that the trial court issued its opinion that
there was no such basis to deny the records.
The trial court
found that for U of L to continue to deny the records after that
date was “willful.”
U of L argues that this determination was erroneous
because its right to appeal that determination was still running
at the time the court imposed its award.
We find no basis in the
statute for excluding costs during the pendency of motions for
rehearing, of which there were several in this case, or an
appeal.
We do not find that this impinges on an agency’s right
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to appeal.
Moreover, an agency may ask the appellate court to
review the order of costs.
On the other hand, appellants argue that having made a
finding of willfulness, the trial court erred in imposing costs
from the date of its order rather than the date of the denial of
the request.
We disagree.
The trial court has discretion under
the statute in its award of costs even after making a finding of
willfulness.
Lang v. Sapp, Ky. App., 71 S.W.3d 134, 135 (2002).
Furthermore, the trial court has no authority to award costs in
the absence of a finding of willfulness.
Id.
Here, the trial
court found that U of L’s action in withholding the materials was
not willful until after it issued its opinion.
Therefore, it
would have been improper for the trial court to award costs any
earlier.
Furthermore, we believe that it was within the trial
court’s discretion to structure the award of costs in the way
that it did.
For the foregoing reasons, we affirm the order of the
Jefferson Circuit Court.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANTS:
BRIEF FOR APPELLEE:
Keith B. Hunter
Louisville, Kentucky
William H. Hollander
Deborah H. Patterson
Wyatt, Tarrant & Combs, LLP
Louisville, Kentucky
ORAL ARGUMENT FOR APPELLEE:
William H. Hollander
Louisville, Kentucky
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