Request By:
Paul V. Guagliardo, Esq.
Assistant Director of Law
City of Louisville
Room 200, City Hall
Louisville, Kentucky 40202-2771
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Jon L. Fleischaker, Esq., on behalf of his clients, The Courier-Journal newspaper and Mr. C. Thomas Hardin, Director of Photography for that newspaper, has appealed to the Attorney General pursuant to KRS 61.880 your denial of Mr. Hardin's request to inspect and copy all photographs in the possession of the police department pertaining to a specifically named police officer.
This office has not been furnished with a copy of Mr. Hardin's letter to the city requesting that he be permitted to inspect and copy all photographs of a particular police officer in the possession of the police department. That letter, however, was referred to you and you replied on behalf of the city.
In your letter of April 27, 1987, to Mr. Hardin you denied his request to inspect and copy the photographs in question. In support of your position you cited KRS 61.878(1)(a) which permits a public agency to exclude from public inspection, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
You also stated that photographs of police officers are maintained by the police department for internal, administrative purposes only. As far as you can determine a public employee does not forfeit most of his or her rights to privacy merely because of public employment. Dissemination of a public employee's photograph is a violation of the employee's right to personal privacy in your opinion.
In his letter of appeal to this office Mr. Fleischaker has set forth his objections to your denial of the request to inspect and copy the photographs in question. He stated that there is nothing inherently private about one's face, appearance or likeness and most people make no attempt to conceal their face, appearance or likeness. To produce a photograph of such persons will not reveal anything personal and private about these persons.
You responded to Mr. Fleischaker's letter in a letter to the Attorney General dated May 12, 1987. In your opinion photographs are private when "coerced" as a prerequisite to obtaining a job and the question is whether an employee forsakes the right not to have his photograph disseminated by the mere fact of obtaining public employment.
OPINION OF THE ATTORNEY GENERAL
KRS 61.870(2) provides that "public record" means in part all photographs which are prepared, owned, used, in the possession of or retained by a public agency.
KRS 61.880(2) provides in part, relative to appeals to the Attorney General, that the burden of proof in sustaining the denial of the request to inspect and copy public records shall rest with the public agency.
As mentioned by legal counsel for both parties, KRS 61.878(1)(a) provides that those public records containing information of a personal nature the disclosure of which woiuld constitute a clearly unwarranted invasion of personal privacy may be excluded from public inspection.
The right of privacy has been defined in part in 62 Am.Jur.2d Privacy § 1 as follows:
"A judicially approved definition of the right of privacy is that it is the right to be free from the unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame or humiliation to a person of ordinary sensibilities. The right of privacy has also been defined as the right to be left alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which the public is not necessarily concerned . . ."
In 77 C.J.S. Right of Privacy § 2 the following appears in part:
"It has been stated broadly that the right of privacy is designed to protect those persons with whose affairs the community has no legitimate concern from being dragged into an undesirable and underserved publicity, and to protect all persons from having matters which they may properly prefer to keep private made public against their will . . ."
The court, in Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109, 111 (1981), said in part that in determining whether disclosure of information would involve an unwarranted invasion of privacy, the test to apply is the balancing of interests of the parties as well as those of the public measured by the standard of the reasonable man.
In an earlier case, Perry v. Moskins Stores, Ky., 249 S.W.2d 812, 813 (1952), the court said in part relative to the right of privacy:
". . . It is based on the right of an individual to be left alone, to be free from unwarranted publicity, and to live without unwarranted interference by the public in matters with which it is not necessarily concerned. However, the right is not absolute. The rule defining the extent of the right is based on the premise that the standard by which the act is judged is that of a reasonable man. Since there is no hard and fast definition of the right, each case must turn on its own facts. Such a rule necessitates a balancing of the interests of the two parties in litigation, as well as those of the public." (citations omitted)
While this office has recognized exceptions to public inspection on the basis of the provisions of KRS 61.878(1)(a), we have also recognized that as a general proposition as many public records and documents as possible should be made available for public inspection. Thus, the situation presented by this appeal involves the right of privacy of a police officer and the public's right to know. The right to protection against an invasion of personal privacy must be balanced against the public's right to know.
No doubt there will be occasions when there is a legitimate reason to prohibit the public inspection of the photographs of a particular police officer. We do not mean to imply the contrary. In this particular situation, however, the city has not met the burden of proof imposed upon it as no reason for denying inspection has been advanced other than a general policy of prohibiting the inspection of all photographs of all police officers on the grounds of protecting the personal privacy of those officers. No specific reason has been advanced such as, for example, that the officer is involved in undercover work and it would expose the officer to additional risks and hazards if photographs of him were made available for public inspection.
Photographs of this particular officer which do not relate to his official duties and functions or which were not required because of his position as a police officer probably could be excluded from public inspection but there is no indication that the photographs in question are anything other than official city or police department photographs of a particular employee of the city and the police department.
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 a particular police officer as the public agency cannot invoke the invasion of personal privacy exemption to public inspection to impose a uniform ban on all requests for photographs of police officers taken in connection with their official positions and functions.
As required by statute a copy of this opinion is being sent to the requesting party's legal counsel, Jon L. Fleischaker, Esq. 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 the appropriate circuit court pursuant to KRS 61.880(5).