Rethinking Data Tree: Proper application of the KORA to the media’s request for marriage information

For years, anyone could go to a courthouse and look up marriage licenses.  Now, however, the Kansas Office of Judicial Administration (OJA) has taken the position that public access to records of marriages should be limited.  In taking this position, JOA claims it seeks to protect the privacy of marriage licensees.  For authority to restrict public access to the information, JOA relies in part on a Kansas Supreme Court case, Data Tree v. Meek, 279 Kan. 445, 109 P.3d 1226 (2005).RiG7y9d6T

Although the Court in Data Tree was concerned with privacy, the case did not deal with requests by the general public for access to government information.  Rather, Data Tree concerned a commercial enterprise’s request for copies of mortgages and deeds.  JOA did not explain why it disregarded the Supreme Court’s statement that its decision in Data Tree was based upon the “specific facts of this case.”  Data Tree, 279 Kan. at 462.  The JOA also did not explain why it failed to weigh the public interest in access to government information as the Data Tree indicates is necessary.  JOA’s reliance on Data Tree threatens to makes marriage information less accessible to the public than ever but without adequate justification.  That misplaced reliance on also creates a risk that officials in the future may make ill-advised use of the case as authority for closing public records.

Applicable statutes indicate the marriage information is a public record.  Once the applicants are married, the clerk of the district court in which the marriage took place “shall record the marriage on the marriage record in the office of the…clerk.”  K.S.A. 23-2511(a).  The “marriage record” constitutes a “public record” under the Kansas Open Records Act (KORA) because it is “recorded information, regardless of form or characteristics, which is made, maintained or kept by or is in the possession of any public agency.”  K.S.A. 45-217(g)(1).  The Kansas Department of Health and Environment concurs, noting that “[m]arriage information is open to the public at the county district court level.”  Kansas Department of Health and Environment website (available online: http://www.kdheks.gov/vital/marriage.html).

In November of 2014, pursuant to a ruling from the United States Supreme Court in Moser v. Marie, 574 U.S. ______ (2014), district courts in Kansas began issuing marriage licenses to same-sex marriage applicants.   The Parsons Sun, the daily newspaper that serves Labette County and the surrounding counties, requested marriage information in each of the marriages that took place in Labette County from November 17, 2014, until December 11, 2014.  Rather than receive an unreacted version of the front page of the marriage license for each of the applicants who had been married during that time, as had always been its experience in the past, the Sun instead received redacted versions.  Omitted were the marriage applicants’ birthdates, although the birth year was unredacted, as well as their mothers’ maiden names.  Social security numbers are not included on the front page of the marriage licenses, and thus were not at issue in the context of the Sun’s request.  Along with the redacted information, the Sun received a letter from the Office of Judicial Administration seeking to explain the redactions by noting that “(s)ome applicant details are redacted pursuant to KSA 45-221(a)(30) and Data Tree v. Meek, 279 Kan. 445, 109 P.3d 1226 (2005).”

The statutory reference is to the KORA, which “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.”  Date Tree, 279 Kan. at. Syl. 2.  Further, K.S.A. 45-221(a)(30) creates an exception for dissemination of information that the clerk considers “of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.”  However, while Data Tree indeed interprets that exception to the KORA and concludes that redaction of dates of birth and mother’s maiden names was appropriate in that particular case, the ruling in that case is wholly distinguishable with a request made by a representative of the media.  The redactions in Labette County upon request by the Parsons Sun is a misapplication of law to a requester who is a member of the public, not a data collection company like in Data Tree.  See Wichita Eagle Beacon Co. v. Owens, 271 Kan. 710, 713 (2001), citing Kansas City Star Co. v. Fossey, 230 Kan. 240, Syl. 2 (1981)(“news media, as a member of the public”).

K.S.A. 45-221(a)(30) provides for the redaction of information considered to be “of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.”  However, that exception must be applied in the context of the statutory definition of “clearly unwarranted invasion of personal privacy,” which by statute means “revealing information that would be highly offensive to a reasonable person, including information that may pose a risk to a person or property and is not of legitimate concern to the public.”  K.S.A. 45-217(b).  This statutory language is similar to the tort of Publicity Given to Private Life, which provides that “[o]ne who gives publicity to a matter concerning the private life of another is subject to liability…if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public.”  Restatement of Torts, 2d, § 652D.

However, because the statute expands on the definition in the Restatement, it establishes a three-factor test: information may be redacted under (a)(30) if it is (1) highly offensive to a reasonable person; (2) poses a risk to a person or property; and (3) is not of legitimate concern to the public.  Further, under Data Tree, an agency is required to weigh “the privacy interests of the individual with the public’s need to know.”  Data Tree, 279 Kan. at 461.

In Data Tree, the plaintiff was “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.”  Data Tree, 279 Kan. at 447 (emphasis added).  When the Sedgwick County register of deeds sought to charge a copy fee for dissemination that Data Tree believed to be unreasonable, Data Tree sued the Sedgwick County Register of Deeds.  Although the copy fee issue drove the litigation at its outset, the Supreme Court also took the opportunity to review whether the District Court properly applied K.S.A. 45-221(a)(30)  in finding that the Register of Deeds “may” redact “social security numbers, dates of birth and mothers [sic] maiden names” because such information was “clearly within the purview of the provisions of K.S.A. 2003 Supp. 45-221(a)(30).”

On appeal, the Court applied a balancing test to determine whether a redaction or nondisclosure is necessary to avoid a clearly unwarranted invasion of personal privacy under K.S.A. 45-221(a)(30).  The court found that “most people” would consider social security numbers, dates of birth, and mother’s maiden name “of a personal nature.”  Data Tree, 279 Kan. at 462.  In ultimately determining that redaction was appropriate, it pointed out that “the information being sought by Data Tree is not for its public notice properties but for commercial purposes….The public interest to be served by releasing unredacted documents with social security numbers, mothers’ maiden names, and dates of birth to a data collection company which intends to sell this information for profit is at best insignificant.”  Id, (emphasis added).  Moreover, the Court specifically limited its holding to the “specific facts of this case.”  Id.  Finally, the Notes of Decision for K.S.A. 45-221(a)(30) state that “(w)hether public disclosure would constitute a clearly unwarranted invasion of personal privacy, as exception to disclosure of public records under Kansas Open Records Act (KORA), is determined by comparative weighing of antagonistic interests, with privacy interest in nondisclosure balanced against 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.” Notes of Decision, Personal Privacy Exemption, K.S.A. 45-221(a)(30) (emphasis added).  Thus, the actual holding in Data Tree should be applied only to its specific facts; i.e., a request for public record information by a data collection company may result in redacted social security numbers, birth dates, and mothers’ maiden names.

In response to the Parson Sun’s request, the redacted information it received included the birth date, but not the birth year, of the marriage applicants, as well as the applicants’ mothers’ maiden names.  Even in that information had been disclosed, is disclosure would not seem to rise to the level of “highly offensive” to a “reasonable person.”  Further, comments included in § 652D the Restatement 2d of Torts, the provision on which the KORA exception in (a)(30) is based, provides some guidance.  “Complete privacy does not exist in this world except in the desert, and anyone who is not a hermit must expect and endure the ordinary incidents of the community life of which he is a part….Even minor and moderate annoyance, as for example through public disclosure of the fact that the plaintiff has clumsily fallen downstairs and broken his ankle, is not sufficient to give him a cause of action.”  § 652D, comment (c), “Highly offensive publicity.”  As such, the first factor weighs in favor of disclosure in the context of the Parsons Sun’s request.

With regard to the second factor, the Data Tree court found that birth dates and mother’s maiden name “are often used as identifiers for financial accounts or for obtaining access to electronic commerce.”  Data Tree, 279 Kan. at 462.  A case can be made that disclosure of such information poses a risk to the subject of the request.  That factor may well weigh in favor of non-disclosure.

Finally, in order for the requested information to be disseminated, it must be of legitimate public concern.  “When the matter to which publicity is given is true, it is not enough that the publicty would be highly offensive to a reasonable person.  The common law has long recognized that the public has a proper interest in learning about many matters.  When the subject-matter of the publicity is of legitimate public concern, there is no invasion of privacy.”  § 652D, comment (d), “Matter of legitimate public concern.”  Moreover, “[t]he line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern. The limitations, in other words, are those of common decency, having due regard to the freedom of the press and its reasonable leeway to choose what it will tell the public, but also due regard to the feelings of the individual and the harm that will be done to him by the exposure.”  Howard v. Des Moines Register and Tribute Co., 283 N.W.2d 289, 302 (Iowa 1976).

Here, the birth dates and mothers’ maiden names fall well within the bounds of common decency.   Moreover, members of the public other than the media could be interested in the information for a variety of reasons, from determining whether the person they are dating has been married before or is currently married to researching genealogy.  Finally, in order to meet its obligations for accuracy, the news media relies on identifiers such as birth dates mothers’ maiden names to corroborate information it learns and subsequently publishes.  Thus, the requester in this instance, the Parsons Sun, has a legitimate interest in that information.  This factor weighs in favor of disclosure.

On balance, it would seem that the first and third factor weigh in favor of the Parsons Sun, and the second factor, potential risk to the subject of the request, may weigh in favor of nondisclosure.  However, even if the agency in possession of the records can establish that dissemination may pose a risk to the subject of the request, the inquiry does not end there.  That potentiality must be weighed against the remaining factors and the stated public policy of KORA. KORA “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.”  Data Tree, 279 Kan. at 454, citing Telegram Publishing Co. v. Kansas Dept. of Transportation, 275 Kan. 779, Syl. 2 (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.’  Data Tree, 279 Kan. at 1233 (citations omitted). Moreover, “[b]ecause of this policy of openness, the exceptions to disclosure are specifically listed, they are narrowly construed, and the burden of proving that an exception applies is on the agency.”  Telegram Publishing, 275 Kan. at 789.  Finally, nondisclosure is favored only if “where disclosure of the personal or private information fails to significantly serve the principal purpose of the KORA,” as long as “such nondisclosure complies with other requirements of the KORA.”  Data Tree, 279 Kan. at 462.  In the context of a member of the public requesting marriage information, the potential harm of disclosing dates of birth and mothers’ maiden names is outweighed by the legitimate public concern related to such information and the fact that its disclosure is not highly offensive to a reasonable person.

Unfortunately, there is no evidence that the balancing test set forth in Data Tree was ever considered by the Office of Judicial Administration with respect to the Parsons Sun request for the marriage licenses.  Although the Data Tree court found that “social security numbers, mothers’ maiden names, and dates of birth fall…fall into this privacy realm” when that information is requested by a data collection company, that does not mean that such information should automatically be redacted in the context of marriage licenses requested by a member of the public.  Given the clear public policy in favor of openness when a request is made by a member of the public, any suggestion that disclosure of the dates of birth or mothers’ maiden names represents a clearly unwarranted invasion of privacy under KORA lacks merit.  The balancing test weighs in favor of the Parsons Sun, and the marriage information it requested should be disclosed in its entirety.