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 properly relied on KRS 610.320(3) and KRS 61.878(1)(a) in denying Lexington Herald-Leader reporter John Cheves's September 28, 1998, request for "the names, addresses and dates of birth of two 6-year-old children involved in an August 22 non-fatal shooting at the home of their babysitter, Dackoma Hayes, at 368 Withrow Way." 1 For the reasons that follow, we find that LFUCG's reliance on these provisions was misplaced.
In its October 1, 1998, response, LFUCG objected to what it characterized as "the Attorney General['s] retreat[] from [his] consistent interpretation of KRS 610.320," and the "narrow[ing of] the scope of the statute" in 98-ORD-123. LFUCG argued:
The Attorney General's new interpretation of the statute limits its protection to court records involving juveniles. Juvenile court cases involve children under the age of eighteen who: 1) have committed a public offense; 2) are habitual truants or runaways; 3) are dependent, neglected or abused; 4) are mentally ill; or 5) will not subject themselves to the reasonable control of their parent(s) or guardian(s). KRS 610.010. [In 98-ORD-123], the Attorney General ruled that the Government's interpretation of KRS 610.320 is too broad; however, 95-ORD-7, 95-ORD-21, and 95-ORD-22, the opinions relied on by the Government, were not overruled. Additionally, the Attorney General ruled that if a case involves a juvenile victim, the three-pronged balancing test, as required by KRS 61.878(1)(a) and Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky. 826 S.W.2d 324 (1992) must be applied to the facts of the case to determine whether the names of the juvenile and the documents relating to the juvenile should be released.
It is LFUCG's position that KRS 610.320 is "intended . . . to apply to several different types of records involving juveniles and not just to court records."
In the alternative, LFUCG argued that "the names of the juvenile victim and perpetrator involved in this incident are also exempt from public inspection pursuant to KRS 61.878(1)(a)," the privacy exception. Applying the three part test for determining the applicability of this exception to a disputed record which was established by the Supreme Court in Board of Examiners , above, LFUCG analogized this case of accidental shooting to a case involving the drive-by shooting of a juvenile with which we dealt in 96-ORD-115. LFUCG attempted to distinguish this case from 98-ORD-123, a case involving a juvenile who accidentally shot himself with a service revolver belonging to his police officer mother, in which this office held that the public's interest in disclosure outweighed the juvenile's privacy interest. LFUCG asserted that "the privacy interest of a juvenile who is injured by anotherjuvenile in an accident in a private home is more akin to that of a victim of a drive-by shooting rather than that of a juvenile who injures himself with his mother's service revolver."
Proceeding to the next step in the analysis, LFUCG maintained that the juvenile's privacy interest in this case is superior to the public's right to know. LFUCG reasoned:
Releasing the name of the juvenile perpetrator, who has not been charged with a crime, would do little to further the public's right to know what its government is doing. . . . If the juvenile perpetrator's name is released, he may be subjected to public ridicule and embarrassment. If the names of juveniles who commit crimes are exempt from public inspection, the names of juveniles who are involved in accidents, in which no crime has been committed, deserve the same protection.
. . .
After investigating this incident, the police department determined that the incident was an accidental shooting and that no crime had been committed. [Footnote omitted.] However, there is no argument that this shooting was serious in nature. If the name of a juvenile who is shot during a drive-by shooting in a public area is exempt from public inspection (96-ORD-115), then surely the name of a juvenile who is injured behind closed doors is exempt form public inspection as well. Further, release of the juvenile's name will have an adverse impact on her. . . . The release of the juvenile victim's name will cause her embarrassment, she may be teased by her peers and the release of her name may impede her recovery. . . . This victim has not done anything to forfeit her privacy.
On this basis, LFUCG requested that the Attorney General affirm its denial of Mr. Cheves's request. Recognizing that reasonable minds may differ on issues of statutory interpretation, we stand firm in our view that KRS 610.320(3) does not extend to law enforcement records in which a juvenile's name appears, but which does not involve the commission by the juvenile of a public offense.
This office has made its position clear on the scope and applicability of KRS 610.320(3). That statute, which is incorporated into the Open Records Act by KRS 61.878(1)(l) 2, 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, prosecutors, the Department of Juvenile Justice, and law enforcement agencies 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, transportation, 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. 3
In 98-ORD-123, we identified the purpose for which this provision was enacted, "namely, to insure that the juvenile receives a fair trial and enhance his prospects for rehabilitation. " 98-ORD-123, p. 6 citing F.T.P. v Courier-Journal and Louisville Times Co., Ky., 774 S.W.2d 444 (1989). 4 It remains our view that this purpose is not fostered by nondisclosure of records of law enforcement agencies concerning incidents which involve juveniles, but in the course of which no public offense was committed. We find no authority in the statutes, or elsewhere, for LFUCG's position that the legislative intent underlying KRS 610.320(3) is to protect any law enforcement record in which a juvenile's name appears so that that juvenile might avoid public scrutiny and embarrassment.
We continue to ascribe to the view that KRS 610.320(3) "operates as an absolute prohibition on the release of law enforcement records of children under the age of eighteen." 95-ORD-22, p. 2. We reiterate, for purposes of absolute clarity, that the statute does not apply "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)." 98-ORD-123, p. 5. It is for this reason that we saw no need to overrule 95-ORD-7 (involving records relating to suicides of two juveniles) , 95-ORD-121 (involving missing person report relating to a juvenile runaway) , and 95-ORD-22 (involving missing person report relating to juvenile runaway alleged to be involved in murder), in98-ORD-123 since these cases involved incidents or activities that fell within the scope of KRS 610.010(1). Contrary to LFUCG's characterization of our position, the Attorney General had not construed the statute so broadly as to apply to any law enforcement record in which a juvenile's name appears. The position we took in 98-ORD-123 therefore did not represent a departure from the earlier line of decisions.
In the appeal before us, no public offense was committed and no charges were brought. The case therefore parallels 98-ORD-123. Nondisclosure of that portion of the report of the accidental shooting which contains the names of the juveniles "will in no further the purposes for which the law was enacted. . . ." 98-ORD-123, p. 6. KRS 610.320(3) is therefore both facially and contextually inapplicable.
Nevertheless, in 98-ORD 123 we recognized that a law enforcement record, like the report at issue in this appeal, "might . . . enjoy [] 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. " 98-ORD-123, p. 6. In 96-ORD-115, the Attorney General held 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 that resulted in the injury. We believe that a juvenile who accidentally inflicts an injury may also have a cognizable privacy interest in the report.
We next proceed to a determination whether disclosure of the juveniles' names would constitute a clearly unwarranted invasion of personal privacy. This determination "entails a comparative weighing of antagonistic interests in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good." Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times , above at 327. Again, we share LFUCG's view that releasing the names of the juveniles will "do little to further the public's right to know what its Government is doing."
Our comparative weighing of these antagonistic interests, however, yields a different result. Neither the juveniles' privacy interest nor the public's interest in disclosure is clearly superior. In our view, the scales here are almost evenly balanced. In such cases, "the 'clearly unwarranted' language found in KRS 61.878(1)(a) tips the scales in favor of disclosure. " 96-ORD-115, p. 3. Moreover, the legislature has mandated that "free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed. . . ." KRS 61.871. Absent evidence of a clearly superior privacy interest, we have no alternative but to find that the Open Records Act compels disclosure of the juveniles' names.
We therefore conclude that the Lexington-Fayette Urban County Government's reliance on KRS 610.320(3) and KRS 61.878(1)(a) to authorize nondisclosure of the juveniles' names was misplaced. Our position on the scope and applicability of KRS 610.320(3) is clear. Until an appellate court rules otherwise in a final, binding and precedential decision, we will continue to ascribe to this view. With respect to our conclusion that KRS 61.878(1)(a) does not authorize LFUCG's position, we reiterate that a record devoid of proof beyond a bare allegation as to the seriousness of the incident and the adverse impact on the juvenile of further disclosure will not support a denial based on that exception.
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.
Footnotes
Footnotes
1 In its response, LFUCG noted that Mr. Cheves's request was an improperly framed request for information rather than a request for documents. Acknowledging, however, that a document exists which contains the information, LFUCG elected to treat his request as a properly framed request for that document. Moreover, LFUCG agreed to release the Complaint and Offense report relating to the incident. The narrow issue in this appeal, therefore, is whether LFUCG may properly redact the names of the juveniles. Since The Herald-Leader does not contest LFUCG's right to withhold the children's home addresses and dates of birth (at least in this forum), we limit our analysis to this issue.
2 KRS 61.878(1)(l)authorizes public agencies to withhold "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
3 KRS 610.320(3) underwent minor revision in the 1998 legislative session. None of these revisions effects the outcome of this appeal.
4 In F.T.P. , above at 446, the Court observed:
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, diminish his or her prospects for rehabilitation. "