Request By:
Edward W. Gardner, Corporate Counsel
Lexington-Fayette Urban County Government
The Municipal Building
136 Walnut Street
Lexington, Kentucky 40507
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested an opinion of the Attorney General on the following questions pertaining to the Kentucky Open Records Law, KRS 61.870 to 61.884:
"1. Is the Urban County Government Division of Police required to release to reporters identification photographs taken of persons who have been arrested when the request for access is made pursuant to the Open Records Act?
2. If a request is made for access to identification photographs relating to a recent arrest and the only photographs which the Division of Police has are photographs taken at an earlier time, does the Division of Police have to provide access to such photographs pursuant to a request made under the Open Records Act? "
In order to put your questions into full context we further quote from your letter as follows:
"Our questions relate to requests for access to police identification photographs which are taken as a routine matter for an identification of persons arrested and booked. Photographs of every person arrested are taken unless there is already a photograph on file which still accurately reflects the appearance of the individual.
Upon being booked, persons have no discretion as to whether or not they will submit to being photographed for identification. The photographs are maintained on file by the Division of Police and have not been generally released to the media. In certain situations, where their release will aid in apprehension of suspects, photographs have been made available for reproduction by the various media.
* * * * *
It would appear that release of identification photographs may be an unwarranted invasion of privacy of persons who have been arrested since those persons are not able to refuse to have the photograph made. Since it would not be proper conduct for the Division of Police to require persons to pose for the media, it would seem that provision of access to identification photographs may serve the same purpose and likewise would be improper."
We will first consider the privacy exemption, KRS 61.878(1)(a) and KRS 17.150(2)(b).
Shortly after the Open Records Law became effective in 1976 we issued two opinions concerning its application to police records. In OAG 76-443 we pointed out that what a police department does is of a public nature, that the sovereign is a party to police actions and therefore the public has a right to inspect the records of such actions. Later we issued an opinion dealing particularly with KRS 17.150(2)(b) which exempts "information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest." We concluded in that opinion, OAG 76-511, that the information in police records about a person who has been arrested or charged with a crime is not "information of a personal nature." We cited the case of Rural Housing Alliance v. U.S. Department of Agriculture, 498 F.2d 73 (1974), which gave as examples of "information of a personal nature" marital status, legitimacy of children, identity of fathers of children, medical condition, welfare payments, alcoholic consumption and family fights. We also cited another case dealing with the Federal Freedom of Information Act, 5 U.S.C. § 552, Wine Hobby U.S.A., Inc. v. U.S. Internal Revenue Service, 502 F.2d 133 (1974) which held that a private business concern would not have a right to obtain the names and addresses of all persons who have registered with the United States Bureau of Alcohol, Tobacco and Firearms to produce wine for family use. We considered those cases as enlightening on how to interpret the privacy exemption in the Kentucky Open Records Law and the Kentucky Criminal Records Law and concluded --
"What a person does in his own home or on his own piece of property, whether it be large or small, is mainly his private affair, but when he enters upon the public ways, breaks the law or inflicts a tort on his fellow man he forfeits his privacy to a certain extent.
We concluded then, and we conclude now, that the personal privacy exemption does not apply to police records.
In OAG 81-395 we concluded that jail records should be open to the public, especially the names of persons lodged in the jail as inmates. We said:
"It is contrary to the principles of personal liberty recognized in this nation for persons to be secretly held in jail. The fact that knowledge of their incarceration may be embarrassing to them or to members of their family is of secondary importance."
Answer to Question No. 1: -- Since the record disclosing the name of a person arrested or incarcerated is open to public inspection and copying, we believe that his photograph is also open to public inspection and copying. A person's name and his photograph are both means of identification, the photograph being more distinctive and sure. We believe, therefore, that the personal privacy exemption does not apply to the photograph of a person who is arrested, booked and photographed by the police as far as his photograph is concerned.
Answer to Question No. 2: -- We believe that whatever photograph the police have on file or which is made when the person is booked should be made available for public inspection. If no photograph is taken at the time of booking because the police already have a sufficiently up-to-date photograph of the arrestee, that photograph should be made available for public inspection and copying.