Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
NOT TO BE PUBLISHED
OPEN RECORDS DECISION
This matter come to the Attorney General on appeal from the Paducah Police Department's partial denial of Mr. Jim Paxton's November 19, 1992, request to inspect certain Department records on a daily basis. The disputed records are identified as "uniform offense report sheets containing information relating to rape victims or victims of sex crimes." Mr. Paxton is the editor of The Paducah Sun, and his request was made under the Kentucky Open Records Act.
In a letter dated November 25, 1992, Mr. Thomas J. Keuler, an attorney representing the Paducah Police Department, responded to Mr. Paxton's request. Relying on KRS 61.878(1)(a), he partially denied that request explaining that "information relating to rape victims or victims of sex crimes . . . might be reflected on any Uniform Offense Report Sheets." It was his position that "divulging the identity of these victims would constitute a clearly unwarranted invasion of personal privacy. . . ."
In his letter of appeal to this Office, Mr. Paxton argues that although it is not the practice of The Paducah Sun to publish the names of rape victims, he believes that the Paducah Police Department has misinterpreted the law. He observes:
We do not believe the legislature ever contemplated or intended such a result in drafting exceptions to the Open Records Law. In fact, the legislature's consideration in past sessions of laws to prohibit publication of the names of rape victims indicates to us that the legislature considers such information presently in the public domain, and having considered the issue with specificity, the legislature has chosen to leave it that way. We also find it hard to imagine that the legislature has swept away 200 years of common law by providing that people who allege sex crimes (unlike those who complain of all other felonies) may make their charges anonymously.
Mr. Paxton asks that we issue a decision consistent with this view.
In OAG 80-54, a copy of which is attached, this Office was asked to determine whether a police department could adopt a policy of withholding the names of rape victims under KRS 17.150(2) and KRS 61.178(1)(f). 1 At page 3 of that opinion, we held:
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.
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.
In light of the Kentucky Supreme Court's recent decision in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992) and the cited opinion, we believe that the Paducah Police Department is foreclosed from adopting a policy of withholding information relating to rape victims or victims of sex crimes. That case clearly stands for the proposition that there can be no per se application of the privacy exception to any category of records. Each case must be decided on its facts.
Mr. Keuler and the Paducah Police Department may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
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