Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Government violated the Open Records Act in responding to Lexington Herald-Leader reporter Sarah Webster's request to inspect records relating to former Lexington police officer Ginger West. Those records are identified as:
1. Investigations or complaints regarding the job performance of ? Ginger West, previously known as Ginger Garrison;
2. A shooting injury of Ginger West's child;
3. Ginger West's resignation; and
4. An incident report of the March 3, 1998, robbery at 609 Elsmere Park involving a juvenile victim.
For the reasons set forth below, we find that LFUCG erred in withholding the personal injury report prepared in 1997 following the accidental shooting of Ms. West's child, but properly refused to disclose the home address and home telephone number of a witness interviewed by the police in the course of their investigation of the Elsmere Park robbery, and an internal affairs report prepared in 1991 following an investigation into a complaint against Officer West (then Garrison).
On behalf of the Lexington-Fayette Urban County Government, Glenda Humphrey-George, corporate counsel, responded to Ms. Webster's request on April 5, 1998. Ms. Humphrey-George released several documents to Ms. Webster which were responsive to her request, but indicated that "not all of the documents requested [would] be made available." Those documents to which LFUCG denied Ms. Webster access included the 1997 personal injury report, portions of the 1998 witness statement, and the 1991 internal affairs report. In denying Ms. Webster access to the personal injury report, LFUCG relied on KRS 61.878(1)(a) and (1) and KRS 610.320(3). The latter provision, which is incorporated into the Open Records Act by KRS 61.878(1)(1), excludes from public scrutiny "all law enforcement records regarding children who have not reached their eighteenth birthday." Ms. Humphrey-George explained:
The personal injury report for the juvenile involved, which was completed by the office who responded to the call, is considered a law enforcement record and is exempt from public inspection. ? The purpose of KRS 610.320(3) is to protect juveniles from public scrutiny and embarrassment. In this case, there was no criminal investigation; therefore this report is exempt. ?
In addition, LFUCG maintained that the report was shielded from disclosure by KRS 61.878(1)(a) since access to the report "does nothing to aid the public in determining what its public servants are doing? [and] would do nothing more than subject the juvenile involved to public scrutiny and embarrassment." LFUCG also invoked KRS 61.878(1)(a) as authority for its decision to redact personal information from a witness statement in the police report of the Elsmere Park robbery, arguing that the need for "nondisclosure outweighs disclosure. "
In partially denying Ms. Webster access to records generated in the course of an internal investigation of a complaint against Officer West, LFUCG relied on KRS 61.878(1)(i) and (j) and the Court of Appeals decision in
City of Louisville v. The Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982). Although LFUCG released "the complaint(s) initiating the investigations and final action taken on the charge(s)," Ms. Humphrey-George argued that:
the underlying investigatory reports of the Internal Affairs unit are exempt from public inspection. The law requires that the Government release the complaint which initiated the investigation and the final action taken. The Government released those two documents to The Herald-Leader . If any of the Internal Affairs documents had been adopted by the Chief as the basis of his final action, they would lose their preliminary status and would be subject to public inspection; however, that is not the case in this instance.
It was LFUCG's position that since the complaint adequately related the nature of the allegations against Officer West, and the Chief of Police made no reference to the findings or recommendations made by Internal Affairs following its investigation of these allegations, "the underlying reports are exempt from inspection. "
While we agree with LFUCG that personal information pertaining to a witness may properly be withheld, as may an internal affairs report that is not incorporated into final disciplinary action, we reject its view that a personal injury report involving the accidental shooting of a juvenile qualifies for exclusion under KRS 610.320(3) and KRS 61.878(1)(a) and (1). We analyze each of the records to which Ms. Webster was denied access, and the propriety of LFUCG's position relative to those records.
Personal Injury Report
It is the opinion of this office that LFUCG erred in withholding the 1997 personal injury report of an accidental gunshot wound to Officer West's child. LFUCG characterizes that report, a copy of which was furnished to us to facilitate our review, as "a law enforcement record of a juvenile who injured himself or herself" which is excluded from inspection by KRS 61.878(1)(1) and KRS 610.320(3). LFUCG notes "the officer on the scene classified this shooting as a personal injury and no further action was taken because no crime had been committed." We find that LFUCG reads the cited provision too broadly, and that the provision does not operate as a bar to disclosure on the facts of this appeal.
KRS 610.320(3) provides:
All law enforcement and court records regarding children who have not reached their eighteenth birthday shall not be opened to scrutiny by the public, except court records, limited to the petition, order of the adjudication, and disposition in juvenile delinquency proceedings concerning a child who is adjudicated a juvenile delinquent for the commission of an offense that would constitute a capital offense or a Class A, B, or C felony if the juvenile were an adult, or any offense involving a deadly weapon, or an offense wherein a deadly weapon is used or displayed. Release of the child's treatment, medical, mental, or psychological records is prohibited unless presented as evidence in Circuit Court. Release of any records resulting from the child's prior abuse and neglect under Title IV-E or Title IV-B of the Federal Social Security Act is also prohibited. Otherwise, the law enforcement records shall be made available to the child, family, guardian, or legal representative of the child involved. The records shall also be made available to the court, probation officers, or representatives of the cabinet. Records, limited to the child's adjudication of delinquency, and disposition of a criminal activity covered by KRS 610.345, shall also be made available to public or private elementary and secondary school administrative and counseling personnel, and to any teacher to whose class the student has been assigned for instruction, subject to the provisions of KRS 610.340 and 610.345.
In construing KRS 610.320(3), the Attorney General has observed:
This provision is found in Chapter 610 of the Kentucky Revised Statutes relating to "Procedural Matters" in Juvenile Court. Juvenile court cases include those where a child under eighteen years of age:
As the Kentucky Supreme court noted in F.T.P. v. Courier-Journal and Louisville Times Co., Ky., 774 S.W.2d 444, 446 (1989):
The purpose of the shroud of secrecy and confidentiality mandated by ? [these] statutes is to protect the juvenile. It was intended that trials of juveniles not be publicized in the news media, as such publicity would possibly deprive the juvenile of a fair trial and, more importantly, would likely diminish his or her prospect for rehabilitation.
93-ORD-42, p. 9. Acknowledging that "there is little to guide us in construing this provision," 95-ORD-7, p. 7, the Attorney General has nevertheless expressly held that "the shroud of secrecy, [mandated by KRS 610.320(3) is] aimed at protecting juveniles [and] cannot logically be extended to protect adults accused of victimizing children," 93-ORD-42, and indirectly recognized that its purpose is not furthered when the disputed law enforcement record relates to the juvenile victim of a crime as opposed to the juvenile who falls within the parameters of KRS 610.010(1)(a) through (f). 95-ORD-7 (records relating to suicide of two juveniles) ; 95-ORD-21 (missing person report relating to juvenile runaway); 95-ORD-22 (missing person report relating to juvenile runaway alleged to be involved in murder).
In 96-ORD-115, we considered whether a law enforcement record involving the juvenile victim of a drive-by shooting was exempt from public inspection. Although LFUCG did not invoke KRS 610.320 (3) to authorize nondisclosure of the incident report, this office noted that the provision was not "directly relevant" and focused instead on the propriety of LFUCG's reliance on KRS 61.878(1)(a). At page 4 of that decision, we observed:
The narrow question presented in this appeal is whether juvenile victims of crime have a heightened privacy interest in records relating to the crimes against them, and are thus entitled to greater protection under KRS 61.878(1)(a) than adult victims of crime generally receive. We believe that there is, in fact, a public policy which militates in favor of protecting the privacy of juvenile victims of crime, and which is consistent with the policies evidenced in the Unified Juvenile Code, but we stop short of approving a policy of blanket nondisclosure relative to records disclosing the identities of juvenile victims of crime. We find that the weight to be assigned the privacy interest corresponds to the nature and circumstances of the crime perpetrated against the juvenile, and that the public interest in monitoring agency action in investigating that crime may, in some instances, outweigh an otherwise de minimus privacy interest.
Having examined a number of factors, including the seriousness of the crime, the circumstances under which it was committed and the adverse impact on the juvenile of further disclosure, we concluded that on the facts presented in the appeal "the harm to personal privacy resulting from disclosure outweighs the benefit to the public." 96-ORD-115, p. 5. We therefore affirmed LFUCG's partial denial of the Herald-Leader's request for that record.
It is our opinion that the appeal before us is more closely akin to 96-ORD-115 than the decisions cited above in which we found that KRS 610.320(3) applied to the disputed records and operated as a bar to disclosure. Inasmuch as no public offense was committed and no charges were brought, we find that nondisclosure of the report of the accidental shooting of Officer West's child will in no way further the purposes for which the law was enacted, namely to insure that the juvenile receives a fair trial and enhance his prospects for rehabilitation, and that the confidentiality provision does not apply.
Nevertheless, the report might have enjoyed protection from disclosure under KRS 61.878(1)(a), as interpreted in 96-ORD-115, if the circumstances of the accidental shooting were such that public disclosure would constitute a clearly unwarranted invasion of personal privacy. In 96-ORD-115, we recognized that a juvenile victim may have a cognizable privacy interest in the report of his or her injury depending on the nature and circumstances of the incident which resulted in that injury. Against this privacy interest we weighed the public's interest in insuring that the law enforcement agency charged with investigating the incident thoroughly and properly discharged its duty. As noted, in 96-ORD-115 we concluded that based on the seriousness of the incident and the circumstances under which it was committed, the names of the hitherto undisclosed victim and her mother could be withheld.
In the appeal before us, we cannot assign the same weight to the privacy interests of the juvenile victim. The identity of the juvenile's mother is already known, and little effort is required to determine the identity of the juvenile. Without revealing the contents of the personal injury report, we believe that the circumstances of the incident giving rise to his injuries were not of such a serious nature that they can be likened to the allegations of sodomy and sexual abuse with which we deal in 93-ORD-42, or the drive-by shooting with which we dealt in 96-ORD-115. Conversely, we believe that the public's interest in disclosure in the appeal before us is substantially greater, since the incident took place in the home of a police officer and involved her duty weapon. It is therefore our opinion that the public interest in monitoring the performance of the Division of Police in investigating the accidental shooting of Officer West's child is superior to the child's interest in avoiding additional trauma by disclosure of the report revealing the facts of the incident. For these reasons, we conclude that LFUCG improperly denied Ms. Webster's request for the personal injury report.
Home address and telephone number of witness
In response to Ms. Webster's request for records relating to the March 3, 1998, robbery at 609 Elsmere Park, LFUCG released the incident report along with the witness statement, which included the witness's name. Nevertheless, LFUCG redacted the witness's home address and telephone number, arguing that the information was excluded from inspection by KRS 61.878(1)(a). This issue was presented to the Attorney General in 98-ORD-100, and resolved in favor of the LFUCG. At page 6 of that decision, we observed:
Kentucky's courts have recognized that these items of information "are generally accepted by society as details in which an individual has at least some expectation of privacy. " Zink v. Commonwealth, Ky.App., 902 S.W.2d 825, 828 (1994)]. While telephone numbers and home addresses are often available through telephone directories and voter registration lists, the courts have nevertheless declared that "this information is no less private." Id. The question is not one of "total non-disclosure, but ? an individual's interest in selective disclosure. " Id. The courts have therefore left little doubt that they consider the telephone numbers and home addresses of private citizens "information of a personal nature." Id.
In weighing the competing interests to determine if an invasion of the witnesses' privacy is warranted, the privacy interests of the witnesses must, in this case, prevail. By releasing the names of the witnesses and their statements, LFUCG has "effectually promoted the public interest in regulation...." Board of Examiners at 328. Because "there is a countervailing public interest in personal privacy, here strongly substantiated, we hold that further disclosure of information contained in the public record ? would, as a matter of law, constitute a clearly unwarranted invasion of personal privacy. " Id. at 328, 329. Simply stated:
Zink at 829. LFUCG acted consistently with the Open Records Act in withholding those portions of the witness statements which revealed the home addresses [and] telephone numbers.
We see no reason to depart from this view. We remind The Herald Leader of the observation appearing in footnote 8 of 98-ORD-100:
As the Court of Appeals noted in Zink at 829, "One of our most time-honored rights is the right to be left alone...." Like the Zink court, we fail to see why an individual who has cooperated with the police in their investigation should have that right disturbed merely because he discharged his civic duty.
We believe that this observation applies with equal force to the instant appeal. Accordingly, we find no error in LFUCG's decision to redact the home address and telephone number of the witness from her statement before releasing it.
Internal Affairs report
The Herald Leader's final objection relates to LFUCG's refusal to release the internal affairs report prepared in 1991 following an investigation into a complaint against Officer West (then Garrison). LFUCG responded to Ms. Webster's request for investigations or complaints regarding Officer West's job performance by releasing the initiating complaint and the document reflecting final disciplinary action. While we share The Herald-Leader's frustration at the paucity of information these documents contain, we believe that the Open Records Act, as interpreted by the courts, does not require more.
In 97-ORD-168 this office analyzed the applicability of KRS 61.878(1)(i) and (j) to records relating to an internal investigation into allegations of wrongdoing against a police officer. It is instructive to quote from that decision:
KRS 61.878(1)(i) and (j) authorize the nondisclosure of:
Applying these exceptions to an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Kentucky Court of Appeals observed:
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658, 659, 660 (1982) (emphasis added).
. . .
An internal affairs report can not be withheld under KRS 61.878(1)(i) and (j) if the final decision maker adopts the notes or recommendations it contains as part of his final action. Such records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports. The purpose for which KRS 61.878(1)(i) and (j) were enacted, namely to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and ideas, is not served by the nondisclosure of an Internal Affairs report which is the basis for the final action taken.
97-ORD-168, pp. 3-6.
Although the Attorney General concluded that the investigative records in that appeal were not exempt from disclosure under KRS 61.878(1)(i) and (j), that conclusion was based on our finding that because the final decision maker "adopted the findings and recommendations of the investigating officer by affixing his signature to the report, the investigative materials that were once preliminary in nature lost their exempt status." 97-ORD-168, p. 7. Indeed, we noted:
Because the occurrence triggers the inquiry, the report itself represents the initiating document. Because the final decision maker, here the Commissioner, signals his concurrence with the investigator's findings and recommendations on the report, that report is physically incorporated into his final decision relative to the inquiry, and forfeits its preliminary characterization. Clearly, the Commissioner adopted the report, in its entirety, when he signed off on the document and affirmed its conclusions. The State Police cannot avoid the mandate of the Open Records Act by directing the creation of a separate record which is devoid of any facts pertaining to the incident and the recommendations upon which the Commissioner relied in reaching his decision. It is not this document which reflects final action. Rather, it is the memorandum to which the Commissioner affixed his signature, reflecting his concurrence.
97-ORD-168, p. 7.
This is not the case in the appeal before us. The personnel order reflecting final disciplinary action, which was released to The Herald-Leader , does not incorporate, physically or by reference, the findings and recommendations of the investigating officer, and there is no evidence that a separate record, devoid of facts, was created to avoid the mandate of the Open Records Act. Although it contains scant information relative to the specific conduct giving rise to the disciplinary action, it is not by this standard that we assess the propriety of the agency's invocation of KRS 61.878(1)(i) and (j). For purposes of absolute clarity, we reject The Herald-Leader's argument that 97-ORD-168 stands for the principle that "by failing to make findings of fact in a Notice of Final Action, the police have, in effect, adopted the preliminary investigation in the Internal Affairs report." This was neither the express nor implied holding in that decision. The Attorney General is not at liberty to so radically depart from the clearly expressed interpretation of the Open Records Act as set forth in City of Louisville and its progeny.
Conclusion
In sum, we find that the Lexington-Fayette Urban County Government properly relied on KRS 61.878 (1)(a) in redacting the home address and telephone number of a witness from the 1998 witness statement taken in the course of the Division of Police's investigation of the Elsmere Park robbery, and on KRS 61.878(1)(i) and (j) in withholding the internal affairs report prepared in 1991 following its investigation into a complaint against Officer West (then Garrison). It is our opinion, however, that LFUCG erred in withholding the personal injury report documenting the accidental shooting of Officer West's child on the basis of KRS 61.878(1)(a) and (1) and KRS 610.320(3).
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.