IN THE SUPREME COURT OF THE STATE OF KANSAS
No. 92,596
DATA TREE, LLC,
Appellant,
v.
BILL MEEK, SEDGWICK COUNTY REGISTER OF DEEDS,
Appellee.
SYLLABUS BY THE COURT
1. The records kept by a register of deeds are public records as defined by the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq., and therefore are subject to the KORA, including the provisions of K.S.A. 2004 Supp. 45-221(a)(30).
2. The KORA provides specific exceptions to disclosure which are subject to the declared public policy of Kansas that public records shall be open for inspection by any person unless otherwise provided by the KORA and shall be liberally construed and applied to promote such policy.
3. The KORA does not prohibit disclosure of public records contained within the exceptions set forth in K.S.A. 2004 Supp. 45-221(a) but rather makes their release discretionary with the agency's official records custodian.
4. The privacy exception contained in K.S.A. 2004 Supp. 45-221(a)(30) is intended to exempt personal information in government records that relates to the intimate details of a person's private life. The public's right to have access to information contained in government records is thus qualified by the protection of an individual's right to maintain the privacy of personal information having no bearing on matters of public interest.
5. Whether public disclosure would constitute a clearly unwarranted invasion of personal privacy is determined by the comparative weighing of antagonistic interests where the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness to the public. The circumstances of a given case affect the weighing or balancing of interests.
6. Under the facts of this case, the information being sought was not for its public notice properties but for commercial purposes, i.e., the sale of the information to business interests which have no relationship to the transaction recorded. The public interest to be served by releasing unredacted documents with personal information such as social security numbers, dates of births, and mothers' maiden names to a data collection company which intends to sell this information for a profit is at best insignificant.
7. Where disclosure of personal or private information fails to significantly serve the principal purpose of the KORA, nondisclosure is favored if such nondisclosure complies with the other requirements of the KORA.
8. Under the specific facts of this case, the Sedgwick County Register of Deeds did not abuse his discretion in determining that public disclosure of the personal information within the documents requested constituted a clearly unwarranted invasion of personal privacy.
9. Redaction of information in public records not subject to disclosure is an act that would be included in the actual costs of furnishing copies under K.S.A. 45-219(c). Nothing in the KORA requires or contemplates shifting any portion of the actual costs of furnishing copies of the requested records from the requester to the custodian of the agency's records.
10. For attorney fees to be awarded under K.S.A. 45-222(c), an agency's action must be both not in good faith and without a reasonable basis in fact or law.
11. Under the facts of this case, because there was no factual or evidentiary hearing below, there was no showing that the actions of the Sedgwick County Register of Deeds in responding to Data Tree's open records request were not in good faith. Whether disclosure of social security numbers, mothers' maiden names, and dates of births constituted a clearly unwarranted invasion of personal privacy under K.S.A. 2004 Supp. 45-221(a)(30) was a question of first impression for Kansas courts and was supported by meritorious arguments. Thus, there was a reasonable basis in fact or law for the actions of the Register of Deeds, and the district court did not err in not awarding attorney fees to Data Tree under K.S.A. 45-222(c).
Appeal from Sedgwick district court, MARK A. VINING, judge. Opinion filed April 22, 2005. Affirmed.
Michael W. Merriam, of Topeka, argued the cause and was on the brief for appellant.
Ed L. Randels, assistant county counselor, argued the cause and was on the brief for appellee.
The opinion of the court was delivered by
DAVIS, J.: The issue we must decide today involves a question of first impression under the provisions of the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq. Data Tree, LLC (Data Tree) filed suit to obtain bulk records contained in 20 separate rolls of microfilm because the Sedgwick County Register of Deeds was exacting redaction fees to eliminate social security numbers, mother's maiden names, and dates of births from the documents requested. Data Tree appeals from summary judgment granted in favor of the Sedgwick County Register of Deeds and that denial of Data Tree's requested attorney fees. Our jurisdiction is based upon K.S.A. 20-3018(c).
Data Tree is a subsidiary of First American Corporation, which purports to be the nation's leading provider of business information by supplying businesses and consumers with the information and resources that affect the major economic events of peoples' lives such as getting a job; renting an apartment; buying a car, house, boat, or airplane; securing a mortgage; opening or buying a business; and planning for retirement. First American has nearly 25,000 employees in the United States and abroad. In 2002, it had revenues of $4.7 billion.
Data Tree is engaged in the business of collecting and providing real estate information and, in the course of such business, gathers and disseminates facts obtained from public records to its clients. Data Tree's business is conducted in part by purchasing copies of public records maintained by various register of deeds' offices in the State of Kansas, including Sedgwick County.
Bill Meek is the duly elected Sedgwick County Register of Deeds (Register of Deeds). The Register of Deeds' office maintains the following types of recorded documents: Uniform Commercial Code (UCC) filings including UCC releases or satisfactions; birth and death certificates; military discharges; federal and state tax liens and tax lien releases or satisfactions; mortgages and mortgage releases or satisfactions; various judgments or liens and releases or satisfactions thereof; various deeds, plats, and indexes; miscellaneous notices and affidavits; affidavits of equitable interests; bankruptcy, probate, and miscellaneous court documents; powers of attorney; and refiled, corrected documents. Many of these documents are likely to contain social security numbers, mothers' maiden names, and dates of births.
In March 2001, Data Tree asked for and received copies of microfilm records from Microfilm Services, Inc. (Microfilm), a local vendor who created microfilm copies of the public records maintained by the Register of Deeds for the period of January 1990 until February 2001. On April 10, 2001, Microfilm informed both Data Tree and the Register of Deeds of the costs involved in providing the records. The total cost for 1,035 microfilm rolls was $13,237.50 or $12.50 per roll plus other fees. No redaction fees were mentioned in this letter.
In March 2000 and at an undetermined time in 2001, one or more persons complained to the Register of Deeds about being solicited for commercial purposes based on information from the public records held by the Register of Deeds. This information was turned over to the district attorney, and an investigation was conducted. As a result of the investigation, it was suggested, although it may have been factually inaccurate, that another subsidiary of First American was selling or providing copies of the documents on microfilm to other entities and that one of the other entities was using the data to solicit sales.
In December 2002, First American again requested all recorded documents from a certain time period in 2001, with the exception of birth records, marriage certificates, and military discharges. In a January 14, 2003, letter, First American Real Estate Solutions general counsel responded to the Register of Deeds' requirement that First American execute an affidavit prohibiting the selling or offering for sale any lists of names and addresses derived from public records. See K.S.A. 2004 Supp. 45-230. First American argued it should not be required to sign such an affidavit, citing Kansas Attorney General Opinion No. 89-47, K.S.A. 21-3914 (now repealed; L. 2003, ch. 126, sec. 5), and K.S.A. 45-215. In a January 17, 2003, letter, the assistant county counselor, for the Register of Deeds, responded that the affidavit requirement would not be waived.
In a March 24, 2003, letter, First American submitted an executed affidavit on behalf of Data Tree and request for the following records: "The following ranges for 2001 on film or CD [identified as] 1960138-1963532 [and] 1967128-193738." This request included all recorded instruments from March 9, 2001, to April 10, 2001, and from April 24, 2001, to May 14, 2001. These records were contained on 20 separate rolls of microfilm.
In an April 22, 2003, letter, the Register of Deeds informed the contracts administrator of First American Real Estate Solutions that many of the requested records contained personally identifying information such as social security numbers, mothers' maiden names, and dates of births which needed to be redacted from the records. The Register of Deeds advised First American that it would have to pay the costs for converting the microfilm to digital information in order to remove or redact the portions that were confidential and not subject to release pursuant to the KORA. The Register of Deeds does not have the capability of converting the microfilm requested and employs an outside firm to accomplish the conversions and redactions. The estimated costs for this process plus the Register of Deed's $50 fee were $22,050.
First American asked that the redaction fees be reconsidered. The assistant county counselor once again explained that the requested records contained a great deal of personal information, not subject to disclosure, citing two provisions of the KORA; see K.S.A. 2004 Supp. 45-221(a)(30), which provides an exception for information that "would constitute a clearly unwarranted invasion of privacy" and K.S.A. 2004 Supp. 45-221(d), which requires a public agency to separate or delete such personal information prior to providing any requested records subject to disclosure. This May 8, 2003, letter explained that the Register of Deeds did not have the capacity to redact the information from the microfilm without printing out each document and redacting the material by hand which would cost more than the estimate previously provided and suggested that First American contact the outside company personally and attempt to negotiate a better deal.
Counsel for Data Tree and First American responded expressing the history of the dispute and his legal opinion. Counsel for the Register of Deeds responded with further legal analysis, concluding that the records would not be delivered without redaction.
In 2003, the Register of Deeds changed its policy and no longer provided copies of documents without redaction of personal or private information to anyone without an agreement as to the use and reproduction of said documents. The Register of Deeds has entered into agreements with title companies, licensed abstractors, attorneys, banks, and mortgage companies to furnish records without the redaction of social security numbers, mothers' maiden names, and dates of births, provided that such entities agree concerning the reproduction of personal information from said documents and indemnifying the Register of Deeds from liability for any misuse. This information has been provided because those entities generally already have the personal identifying information of the parties to the transaction and there has been a tacit waiver by the parties to this information. On July 17, 2003, the Register of Deeds sent Microfilm a letter directing that copies of such documents were not to be provided to outside entities without redaction unless approved by the Register of Deeds.
On October 8, 2003, Data Tree filed its action against the Register of Deeds claiming a violation of the KORA, K.S.A. 45-215 et seq., and seeking a declaratory judgment that (1) the Register of Deed's actions were contrary to law and the duties of its office; (2) the requested documents were public records which must be disclosed and copied at a reasonable charge; and (3) alternatively, the Register of Deeds must bear the costs of deleting the personal information. Data Tree prayed for an order enjoining the Register of Deeds from any further violations of the KORA and for an order in mandamus compelling the Register of Deeds to comply with the law and Data Tree's requests for such public records now and in the future.
The Register of Deeds filed a motion for summary judgment. Data Tree then filed a motion for summary judgment and a request for a hearing on attorney fees. After a hearing, the district court granted the Register of Deed's motion of summary judgment, denied Data Tree's motion for summary judgment and request for attorney fees, and dismissed Data Tree's complaint, reasoning:
"1. It is the intent of the legislature pursuant to K.S.A. 45-216 that records be open for inspection by any person unless otherwise provided by the provisions of the Kansas Open Records Act (KORA), and that the provisions of said act shall be liberally construed and applied to promote such policy.
"2. The legislature clearly created certain exemptions which are primarily set out in K.S.A. 2003 Supp. 45-221. Said exemptions must be given meaning or anything held by the government would be open.
"3. [The Register of Deeds] has an obligation to preserve the records and to comply with the provisions of K.S.A. 2003 Supp. 45-230.
"4. The records sought by [Data Tree] are subject to the open records provisions of the Kansas Open Records Act, but sensitive information may be redacted before distribution to the public. The protection of private information including social security numbers, dates of birth[s] and mothers maiden names is clearly within the purview of the provisions of K.S.A. 2003 Supp. 45-221(a)(30).
"5. The change in position taken by the [Register of Deeds] in 2003 as to the need for redaction was not made in bad faith and was taken during the ordinary course of his duties. No attorneys fees are to be awarded.
"6. Pursuant to K.S.A. 45-219, all costs of producing records including the cost of redaction are to be borne by [Data Tree] as the requestor--which is similar to litigation costs where the party requesting the records is responsible for the cost of production.
"7. [Data Tree] is entitled to copies of the records requested, subject to one of two options set forth below:
A. [Data Tree] may obtain bulk copies, at cost, of the microfilm provided a duly authorized representative of [Data Tree] enter[s] into the standard agreement with [the Register of Deeds] as to the use and reproduction of said records and providing for the redaction of social security numbers, mothers' maiden names, and dates of birth[s]; or
B. [Data Tree] may, upon payment of the full estimated cost of producing the records including the cost of redaction, obtain copies of the records requested with the social security numbers, mothers' maiden names, and dates of birth[s] redacted."
Data Tree raises the following issues in this appeal: (1) The Register of Deeds has no authority to redact recorded instruments; (2) K.S.A. 2004 Supp. 45-221(a)(30) does not apply to the Register of Deeds and is no basis for denial of access to copies of public records; (3) if redaction is required, the cost must be borne by the Register of Deeds; and (4) Data Tree is entitled to attorney fees for denial of access.
(1) Authority to Redact
Data Tree contends the Register of Deeds has no discretion to deny access to any recorded instruments based on the exception to disclosure in K.S.A. 2004 Supp. 45-221(a)(30) because the sole purpose of a register of deeds is to place voluntarily submitted documents on the public record for the purpose of imparting notice to the public of their contents. The Register of Deeds does not dispute that the purpose of his office is to put the public on notice of instruments submitted for recording; however, in most cases, information such as social security numbers, mothers' maiden names, and dates of birth[s] are not mandated by law or the policy of the Register of Deeds. According to the Register of Deeds, there is nothing in the provisions of the KORA to suggest that K.S.A. 2004 Supp. 45-221(a)(30) applies only to certain public records.
Data Tree further argues the duties of a register of deeds to "record" equate with imparting notice, which is meaningless if a register of deeds has discretion concerning which parts of recorded documents serve to put the public on notice of their contents. K.S.A. 19-1204(a) states:
"The register of deeds shall have custody of and safely keep and preserve all the books, records, deeds, maps, papers and microphotographs deposited or kept in the office of the register of deeds. The register of deeds shall also record, or cause to be recorded, in a plain and distinct handwriting or in another legible manner, in suitable books or other accessible format to be provided and kept in the office of the register of deeds, all deeds, mortgages, maps, instruments and writings authorized by law to be recorded in the office of the register of deeds and left with the register of deeds for that purpose, and shall perform all other duties as are required by law."
When third parties submit information to a register of deeds for recording, Data Tree contends it should be up to the third party to omit any personal or private information such as social security numbers if the filer does not wish the information to appear in the public filing. Further, these third parties have paid a fee for the purpose of making the document public, and Data Tree contends the Register of Deeds does not have the discretion or authority to deprive these third parties of their right to public recording.
Most of the arguments advanced by Data Tree under this issue would seem to fall more appropriately under the second issue it raises concerning the application of K.S.A. 2004 Supp. 45-221(a)(30). Our main concern under this issue is twofold: Does Data Tree's request for information involve a public record as that term is defined by K.S.A. 45-217(f)(1) and, if so, does K.S.A. 19-1204 prevent application of the exception to disclosure contained in K.S.A. 2004 Supp. 45-221(a)(30) of the KORA?
K.S.A. 45-217(f)(1) defines "[p]ublic record" to mean "any recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency . . . ." It is beyond dispute that the Register of Deeds' office is a public agency and that the documents filed for record in that office are public records. Data Tree provides no support for its contention that the Register of Deeds' public records come under the KORA but are not subject to the disclosure exceptions under K.S.A. 2004 Supp. 45-221. Under K.S.A. 45-217(f), it is clear that the records kept by the Register of Deeds are public records as defined by the KORA and therefore are subject to its provisions, including K.S.A. 2004 Supp. 45-221(a)(30). Nothing in K.S.A. 19-1204 concerning the duties of a register of deeds provides otherwise. The issue in this case becomes whether the exercise of discretion by the Register of Deeds in requiring redaction prior to disclosure of the requested records was lawful, which is the subject of our inquiry into the second issue raised by Data Tree.
(2) K.S.A. 2004 Supp. 45-221(a)(30)
Data Tree contends the inquiry as to whether a public agency may withhold certain personal information from disclosure under K.S.A. 2004 Supp. 45-221(a)(30) is whether there is a reasonable expectation of privacy with regard to that information. The district court found the exceptions to disclosure set out in 45-221 must be given meaning or anything held by the government would be open. The district court determined that "sensitive information" may be redacted before distribution to the public and, in this case, that private information including social security numbers, mothers' maiden names, and dates of births clearly came within the purview of the disclosure exception in 45-221(a)(30).
K.S.A. 2004 Supp. 45-221(a) provides: "Except to the extent disclosure is otherwise required by law, a public agency shall not be required to disclose: . . . (30) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." We note that K.S.A. 45-221 was amended three times in 2004; however, the amendments have no bearing on this case. See K.S.A. 2004 Supp. 45-221 (L. 2004, ch. 171, sec. 30); K.S.A. 2004 Supp. 45-221g (L. 2004, ch. 177, sec. 1); K.S.A. 2004 Supp. 45-221h, (L. 2004, ch. 151, sec. 1).
The KORA, K.S.A. 45-215 et seq., was passed by the legislature to ensure public confidence in government by increasing the access of the public to government and its decision-making processes. Telegram Publishing Co. v. Kansas Dept. of Transportation, 275 Kan. 779, Syl. ¶ 2, 69 P.3d 578 (2003). The primary focus of case law interpreting the KORA is on the overriding public policy set forth in K.S.A. 45-216(a), which provides: "It is declared to be the public policy of the state that public records shall be open for inspection by any person unless otherwise provided by this act, and this act shall be liberally construed and applied to promote such policy." This is reiterated in K.S.A. 45-218(a), which states in part: "All public records shall be open for inspection by any person, except as otherwise provided by this act." See Telegram Publishing Co., 275 Kan. at 785; Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, 416, 997 P.2d 681 (2000).
Determining whether the district court correctly applied the KORA and a particular exception to disclosure is a question of law involving interpretation of statute. Wichita Eagle & Beacon Publishing Co. v. Simmons, 274 Kan. 194, Syl. ¶ ¶ 3, 14, 50 P.3d 66 (2002); Cypress Media, Inc., 268 Kan. at 416. The KORA provides specific exceptions to disclosure; however, the exceptions are to be narrowly interpreted, and the burden is on the public agency opposing disclosure. Telegram Publishing Co., 275 Kan. at 785; Wichita Eagle & Beacon Publishing Co., 274 Kan. 194, Syl. ¶ 3.
K.S.A. 2004 Supp. 45-221(a), which contains the statutory exceptions to disclosure, sets out in detail 46 categories of records which public agencies are not required to disclose. The KORA does not prohibit disclosure of records contained within these exceptions but makes their release discretionary with the agency's official records custodian. Harris Enterprises, Inc. v. Moore, 241 Kan. 59, 63-64, 734 P.2d 1083 (1987).
Only two Kansas cases have had the opportunity to address the disclosure exception at issue here, Southwest Anesthesia Serv., P.A. v. Southwest Med. Ctr., 23 Kan. App. 2d 950, 952-53, 937 P.2d 1257 (1997), and Burroughs v. Thomas, 23 Kan. App. 2d 769, 772, rev. denied 262 Kan. 959 (1997). In Southwest Anesthesia, the Court of Appeals found the exception in 45-221(a)(30) was inapplicable to the open records at issue because the medical center did not present any testimony or evidence in support of this exception. 23 Kan. App. 2d at 953.
In Burroughs, a coroner filed an autopsy report concerning Burroughs' death. Burroughs' spouse sought disclosure of the coroner's records. In determining whether an exception under 45-221(a)(30) applied in this situation, the Court of Appeals found that generally only the person whose privacy was invaded can bring a cause of action for invasion of privacy. Because Kansas does not provide for survival of a cause of action for invasion of privacy, the Court of Appeals concluded the exception to disclosure of public records in 45-221(a)(30) did not apply. 23 Kan. App. 2d at 772. Neither Southwest Anesthesia nor Burroughs is helpful in this case.
Acknowledging the paucity of case law on this particular exception, Data Tree cites several Kansas Attorney General opinions regarding treatment of 45-221(a)(30). The Supreme Court is not bound by the conclusions of attorney general opinions; however, the opinions are persuasive authority. See General Building Contr., LLC v. Board of Shawnee County Comm'rs, 275 Kan. 525, 536, 66 P.3d 873 (2003).
In Att'y Gen. Op. No. 2002-55, the Kansas Attorney General determined the issue under 45-221(a)(30) was whether the information is of a "highly personal nature." Looking at federal law analysis of the protection from state intrusion into fundamental aspects of personal privacy and whether such information is given protection, the decision maker considers: "(1) if the party asserting the right has a legitimate expectation of privacy [in that information], (2) if disclosure serves a compelling state interest, and (3) if disclosure can be made in the least intrusive manner." If the first factor is not met, the second and third factors need not be addressed. The Attorney General considered that the information sought in this particular inquiry was water usage, billing history, and contact information. Another subsection of 45-221 already required release of this information if requested. See K.S.A. 2004 Supp. 45-221(a)(26). Furthermore, this information was to be shared between municipally operated utility companies for use in billing customers and not disseminated to the general public. The Attorney General concluded customers had no reasonable expectation that this information would remain confidential.
Interpreting the operative phrase of 45-221(a)(30) in Att'y Gen. Op. No. 2001-33, the Kansas Attorney General stated: "We believe that a high standard is suggested by the words, 'clearly unwarranted invasion of personal privacy.' The privacy interest is one that applies only when release would reveal truly intimate details, or present some unusual danger." The Attorney General derived this standard from Connecticut, which had adopted the Restatement (Second) of Torts § 652D (1977) definition of a tort action for the invasion of personal privacy. Connecticut was attempting to establish an objective standard to determine what information can be closed as constituting an "invasion of personal privacy" under the Freedom of Information Act (FOIA), see 5 U.S.C. § 552 (2000), and held that home addresses of public employees were open under the Act as such disclosure was not "highly offensive."
The records sought in that Kansas Attorney General opinion were the membership list of the Coffeyville City Golf Course, including home addresses. The Attorney General noted that Kansas had a statute, K.S.A. 21-3914 (now repealed; L. 2003, ch. 126, sec. 5), which made it a crime to obtain a list of names and addresses from public records "for the purpose of offering for sale any property or service to the persons therein listed." (Kansas has now enacted civil penalties for such violations as part of the KORA. See K.S.A. 2004 Supp. 45-230; L. 2003, ch. 126, sec. 1.) Consequently, the Attorney General found that this statute would have no meaning if this information was closed and, therefore, in Kansas names and addresses are open absent special circumstances. Interestingly, the opinion notes that Att'y Gen. Op. Nos. 98-38 and 87-168 had previously concluded that social security numbers may be closed because of the danger of identity theft. See Att'y Gen. Op. No. 2001-33.
Data Tree discusses two Kansas Attorney General opinions on social security numbers: One finding no expectation of privacy in social security numbers when, according to Data Tree, the number is contained on a document that the individual "knows and expects that others will see," the other finding no public interest in disclosing the social security number of a crime victim. See Att'y Gen. Op. Nos. 98-38 and 97-39.
Att'y Gen. Op. No. 97-39 stated that "[g]iven the plethora of laws that require disclosure of one's social security number, it is our opinion that an individual has no reasonable expectation of privacy in his or her social security number as against the government when applying for a professional, occupational, or marriage license." (Emphasis added). The opinion was addressing 1997 S.B. 140, sec. 6, requiring social security numbers on certain license applications, as part of enactments facilitating the ability of the Kansas Department of Social and Rehabilitation Services to enforce child support obligations. K.S.A. 45-221(a)(30) was not an issue and not discussed.
Data Tree does not discuss a Kansas Attorney General opinion that determined social security numbers supplied in connection with the annual registration of attorneys are not subject to disclosure pursuant to 45-221(a)(30) at the discretion of the Clerk of the Appellate Courts. See Att'y Gen. Op. No. 87-168. The opinion indicated the purpose of the privacy exception has been stated as:
"'[The privacy exception] is intended to exempt information in government records that relates to the intimate details of a person's private life. The public's right to have access to information contained in government records is thus qualified by protection of an individual's right to maintain the privacy of personal matters having no bearing on matters of public interest.' Frederickson, Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act, 33 U. Kan. L. Rev. 205, 256 (1985)." Att'y Gen. Op. No. 87-168.
Noting that § 7 of the federal Privacy Act of 1974, see 5 U.S.C. § 552a (2000), gives an individual a privacy interest in his or her social security number, the Attorney General found the release of an individual's social security number, in this instance, would be an invasion of personal privacy.
The attorney registration form also includes an attorney's date of birth, among other information. The Attorney General further opined:
"We know of no law which prohibits disclosure of the other information contained in the list. The information does not fall under the privacy exception as disclosure would not constitute a 'clearly unwarranted invasion,' and the public's right to know outweighs any privacy interest