Request By:
Captain D. L. Pendleton
Commander, Post 10
Kentucky State Police
U.S. Highway 421
Harlan, Kentucky 40831Detective Ted Hettel
Kentucky State Police
KSP Photographic Laboratory
1250 Louisville Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Gerry L. Calvert, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect various documents in the custody of the Kentucky State Police. He has described the records in question as photographs taken by the State Police on December 22, 1985, concerning an automobile accident in Pineville, Kentucky, on the Middlesboro Road in which Mrs. Ruby Patterson was killed.
In a letter to Captain Pendleton, dated March 7, 1986, Mr. Calvert requested copies of the photographs taken by the State Police at the accident scene mentioned in the preceding paragraph. That letter was evidently referred to the KSP Photographic Laboratory as Mr. Calvert received a letter from Detective Hettel, dated March 26, 1986, advising that 24 photographs had been taken but only fifteen of them could be released, due to the explicit nature of the remaining photographs which reveal the corpse. Mr. Calvert was further advised to contact Captain Pendleton if he had any questions concerning the unreleased photographs.
Mr. Calvert, in a letter dated March 28, 1986, requested that Captain Pendleton furnish him with copies of the nine photographs which had not previously been released. He advised Captain Pendleton that he represents Dorothy Patterson Peterson (executrix of the estate of Ruby Patterson) and her sister, Pauline Patterson Carmack.
Captain Pendleton responded to Mr. Calvert, in a letter dated March 31, 1986, and advised him that the nine requested photographs cannot be released "due to the privacy of the individual pictured. That privacy does not end when the pictured individual is deceased. "
Mr. Calvert states that he talked with Captain Pendleton by telephone on March 31, 1986, and was advised that the photographs would not be released without a letter from this office saying it was legal or an order of some court authorizing the release of the photographs. Mr. Calvert requests this office to advise him or Captain Pendleton that he is entitled to the nine photographs in question either as attorney for the executrix who can bring a wrongful death action, or under the Open Records Law. It should be noted by all parties at this point that this office will only respond to Mr. Calvert's request within the context of an appeal under the Open Records Act (KRS 61.870 to KRS 61.884).
On April 28, 1986, the undersigned Assistant Attorney General talked by telephone with Major Bob Stallins, the official custodian of records for the Kentucky State Police, and Captain Perry of the KSP Photographic Laboratory. After concluding those conversations, it is my understanding that the State Police has adopted a policy whereby copies of photographs will not be furnished in those situations where a corpse is revealed. The reason given is the protection of the deceased's privacy. The only exceptions to this policy appear to be the furnishing by the requesting party of a court order authorizing release of the photographs or the furnishing of permission to release such photographs by the nearest living relative of the deceased.
OPINION OF THE ATTORNEY GENERAL
Among the Public records excluded from public inspection under the Open Records Act and subject to inspection only upon an order of a court of competent jurisdiction are those set forth in KRS 61.878(1)(a) and described as, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
However, in connection with the utilization of the privacy exemption, this office has said that a deceased person has no right of privacy under KRS 61.878(1) (a) of the Open Records Act. Requested records cannot be withheld from public inspection on the grounds of personal privacy where those records pertain to persons who are deceased as their right of privacy terminated at the time of their death. A deceased person has no personal privacy rights and the personal privacy rights of living persons do not extend to matters concerning deceased relatives. See OAG 82-413, OAG 82-590 and OAG 81-149, copies of which are enclosed, as well as the case of McLean v. Rogers, 100 Mich.App., 734, 300 N.W.2d 389, 391 (1980). Note also that the definition of "public records" set forth in KRS 61.870(2) includes photographs.
In 77 C.J.S. Right of Privacy § 1(c), it is stated in part that on the theory that the right of privacy is purely personal, it has been held or recognized that it may be enforced only by the person whose right has been infringed. Furthermore, the individual right of privacy which any person has during his life dies with the person and any right of privacy which survives is a right pertaining to the living only. In 62 Am.Jur.2d Privacy § 43 the following appears: "It has generally been held that the right of privacy is purely personal, and that the right of action for its violation does not survive, but dies with the person whose privacy has been invaded. "
As to attempts by relatives or representatives of a deceased to recover for invasion of privacy resulting from posthumous publicity involving the decedent, the following appears in 62 Am.Jur.2d Privacy § 12:
". . . It is usually not altogether clear in such cases whether the claim is based on a theory that the decedent's right of privacy survived him and was enforceable by his representatives, or upon the contention that the privacy of the survivors was invaded by publicity relating to one with whom they were closely involved, even though they suffered no direct publicity. In any case, the courts have usually been unsympathetic to such a cause of action and have denied relief . . . ."
No doubt there will be occasions when there is a legitimate reason to prohibit the public inspection of photographs of a particular accident. We do not mean to imply the contrary. In this particular situation, however, no reason for denying inspection, other than what appears to be the general policy of the State Police relative to all such matters of this kind, has been advanced. Thus, in this opinion, we have only dealt with that general policy and its application to the specific fact situation presented by this appeal.
It is, therefore, the opinion of the Attorney General that the public agency improperly denied the request to inspect and obtain copies of photographs of an accident which revealed a corpse, as the public agency cannot invoke the privacy exemption to public inspection to impose a uniform ban on all requests for photographs revealing corpses, since, generally, privacy is a personal right which dies with the deceased person.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Calvert. If you or the public agency decide not to comply with the conclusions set forth in this opinion, proceedings challenging this opinion may be instituted in circuit court pursuant to KRS 61.880(5).