Request By:
Captain L. E. Fentress
Legal Officer
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Jim Malone has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect various records and documents in your custody.
In a letter to you dated September 21, 1987, Mr. Malone made the following request:
As per our conversation 9-21, this is a formal request under the Kentucky Open Records Law to review records of the Kentucky State Police legal fund. This would include receipts, disbursements and fund balances from 1985 to the present.
You replied to Mr. Malone in a letter dated September 23, 1987, and advised him that his request was granted in part and denied in part.
There is no objection to review of fund receipts and balances, and there is no objection to review of disbursements so long as such review is limited to the dollar amounts of disbursements during any particular time interval. We object, however, to review of disbursements that would identify the officer on whose behalf the disbursement was made or the law firm or attorney who received the disbursement. It is our position that access to such information is excluded from the application of the Open Records Act by KRS 61.878(1)(a), which excludes "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
Inasmuch as legal fund monies are not disbursed except in cases where the officer is sued in his personal capacity, and inasmuch as no public funds are utilized, we are of the opinion that the fee which is charged to the officer by his attorney is a personal and confidential matter.
In his letter of appeal to this office, dated September 26, 1987, and received September 29, 1987, Mr. Malone maintains that he should be permitted to examine the individual expenditures. He states that the fund in question is maintained and administered by a public agency and by public employees. Many of the expenditures are in connection with litigation involving police officers and, in Mr. Malone's opinion, a state agency's payments to attorneys are not private matters.
The undersigned Assistant Attorney General talked with you by telephone on October 2, 1987, in an attempt to learn more about the Kentucky State Police Legal Fund. You advised that it is a voluntary subscription fund in which about 950 persons participate. It is not a state account and no state money is involved. The participants contribute their own personal funds, some of which is done by payroll deductions.
The fund reimburses the officers for sums paid by them in connection with legal matters. The fund is not a legal entity. It is administered by a Board of Directors, all of whom are state police officers. Records associated with the fund are not official records of the State Police but they are in your custody.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those records described in KRS 61.878(1)(a) as, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
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 humilitation to a person of oridinary 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 U.S.C. Right of Privacy § 2 the following statement appears:
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 undeserved 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. (Citation omitted.)
We are thus confronted with the right of privacy of various state police officers and the right to know of the newspaper and its readers. The right of protection against an unwarranted invasion of personal privacy must be balanced against the newspaper's right to know about specific expenditures by the Kentucky State Police Legal Fund. The newspaper has been or will be furnished with information relative to receipts and fund balances. As to disbursements, information has been or will be furnished in connection with the dollar amounts of disbursements during any particular time period but you will not furnish information and records pertaining to disbursements which identify the officer on whose behalf the expenditure was made and the law firm or attorney who received a particular payment.
You specifically stated in your letter to Mr. Malone that the Kentucky State Police Legal Fund does not consist of and does not expend public funds. You have advised that it is a voluntary fund into which about 950 police personnel contribute their own money. The fund reimburses police personnel for sums expended by them where they have been sued in their personal capacities. The money is not in a state account, the fund does not constitute a legal entity and it is administered by a board of directors rather than by the Kentucky State Police and the Justice Cabinet.
While the records pertaining to the Kentucky State Police Legal Fund are in your custody and in your office, we believe that under the facts presented in this particular situation the police officers' right of privacy should prevail over the right of the newspaper and its readers to inspect documents relative to the disbursement of money by this legal fund. Of particular significance to this office is the fact that the legal fund gets its money from voluntary contributions by police personnel of their own personal funds and the legal fund is not a state maintained or administered account.
It is, therefore, the opinion of the Attorney General that your refusal to furnish information and records pertaining to disbursements by the Kentucky State Police Fund, which identify the officer on whose behalf the expenditure was made and the law firm or attorney who received a particular payment, can be supported by the privacy exception to public inspection set forth in KRS 61.878(1)(a) since the Legal Fund consists of voluntary contributions by police personnel of their personal funds.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Jim Malone, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).