Monday, September 8, 2014

Judge's entry and exit from county parking garage not subject to Open Records request

The Kenton County Fiscal Court did not violate the Open Records Act by redacting the times of entry and departure of a judge from a county parking garage, the attorney general held August 13.

The decision came regarding a matter between the fiscal court and James A. Dietz.

Dietz appealed the fiscal court’s partial denial of his request for records concerning the frequency of use of the county parking garage by Kenton County Family Court Judge Lisa O. Bushelman for calendar years 2012 and 2013.

The fiscal court provided Dietz with a 45-page parking system activity report, but it redacted the identification number associated with the judge’s key card and the times she entered and departed the garage without explanation, according to the opinion. The fiscal court did not redact the dates on which the judge’s key card had been used.

Dietz questioned the fiscal court’s omission of statutory reliance for the redactions, the opinion stated, and he argued that he was not concerned with the identification number, but instead wanted to see the times Bushelman used the garage.

“The time information may … indicate to the public whether its judges, who are public servants compensated by public tax dollars, are spending a sufficient amount of time performing their jobs on the days they park their cars in the courthouse garage,” Dietz said in subsequent correspondence, according to the opinion.

Dietz cited attorney general opinions in which the public’s right of access to records concerning public employee time and attendance had been affirmed, the opinion stated.

The fiscal court cited opinions in which the attorney general affirmed public agency denials of requests because the production of the records would pose an “unreasonable burden,” meaning it would compromise a significant governmental interest. The fiscal court also noted the safety concerns of releasing the exact times of a judge’s travels.

As a preliminary matter, the attorney general said the fiscal court had violated a provision of the Open Records Act because its initial response to Dietz did not include the statutory authority for the partial denial. However, since the fiscal court had acknowledged this in subsequent correspondence, the attorney general addressed it no further.

The attorney general then addressed the fiscal court’s argument concerning the identification number of the judge’s key card.

Since Dietz had not requested this information, the attorney general found “that the fiscal court failed to make a clear and convincing showing that disclosure of the parking system activity reports, including the times of entry and exit, but excluding the key card identification number, would necessitate an immediate revision of policy or practice.”

Concerning the redaction of the times of the judge’s entries and exits from the garage, the attorney general found that the fiscal court had not violated the Open Records Act for its partial denial of Dietz’s request.

The attorney general noted that while requests for time spent working by public servants is generally disclosed, the times of a judge’s use of the parking garage “would not constitute an accurate measure of the judge’s time spent in public service.”

Weighing the public’s desire to know that a judge is performing her public service and the judge’s interest in personal safety, the attorney general found the judge’s interest tipped the balance and the fiscal court had not violated the Open Records Act for its redactions.

“[U]nder the particular facts and circumstances presented, the public’s right to know that Judge Bushelman, a public servant, is properly executing her statutory functions does not outweigh the significant privacy interest Judge Bushelman possesses in her own personal safety and security,” the attorney general said.

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