Request By:
Mr. John Woestendiek
City Editor
The Lexington Leader
239 West Short Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
In your letter of January 3, 1980 you state that the Lexington Police Department has informally adopted a policy under which the names of rape victims are withheld from the public; that you discovered this policy when you sought the name of a rape victim who shot and killed her assailant; that the police say that this policy is the result of an agreement between the Police Department and the Lexington Rape Crisis Center.
You request an opinion of the Attorney General as to whether the above described policy is in conformity with Kentucky law as to the right of the public to inspect public records.
There are two separate statutory enactments which deal with this question. One is a portion of KRS Chapter 17, Public Safety, dealing with criminal statistics, KRS 17.110-17.157. KRS 17.150(2) reads as follows:
"Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection providing prosecution is completed or a determination not to prosecute has been made. However, portions of such records may be withheld from inspection if such inspection would disclose:
(a) the name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) information which may endanger the life or physical safety of law enforcement personnel; or
(d) information contained in such records to be used in a prospective law enforcement action.
"(3) When a demand for the inspection of such records is refused by the custodian of the record, the burden shall be upon the custodian to justify the refusal of inspection with specificity. Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section."
The other statute dealing with the question is in the Kentucky Open Records Law, KRS 61.870-61.884. The pertinent provision is KRS 61.878(1)(f) which reads as follows:
"The following public records are excluded from the application of KRS 61.870-61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
* * *
"(f) Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870-61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however, that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870-61.884."
The tenor of the two statutes quoted above is the same and, in sum, is that law enforcement agencies may withhold their records from public inspection for three reasons:
(1) to protect the identity of an informant;
(2) to protect the life and safety of law enforcement personnel; and
(3) to protect the state's ability to effectively prosecute criminal cases.
There is also in both statutes the provision for the protection of personal privacy from unwarranted invasion by weighing the privacy rights of individuals against the need for the public to know how its business is being conducted.
We believe that generally the public interest in police business outweighs any privacy interest of victims, offenders or police personnel. We have opined that records of a police department which are referred to as the "police blotter" or "incident reports" are open to public inspection. OAG 77-102. Such records usually contain the name of the complaining victim. The question you present is whether the police may adopt an exception to the general rule in regard to rape victims. We believe that there is no statutory provision for such an exception.
You state that your newspaper has its own policy in regard to publishing the names of rape victims but that you believe that in any event you have the right to know the name of the victim.
As we have often observed, a newspaper has the same right of access to public records as has the general public. The public has the right to inspect any public record unless it is made confidential by statute or comes under one of the exemptions in KRS 61.878. We believe it is not for the Attorney General to weigh the equities or rationalize exemptions which are not expressly set forth in the law. We interpret the law as it is and not as the way we think it should be. If changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the Court.
It is therefore the opinion of the Attorney General that a police department cannot adopt a policy of withholding the names of victims of crime, including the crime of rape.