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 City of Louisville properly relied on KRS 61.878(1)(c) and KRS 61.878(1)(i) and (j) in denying Thomas W. Dyke's November 5, 1998, request to inspect records in the custody of the Louisville Division of Police relating to Ethel Phelps. For the reasons that follow, we find that the city's reliance on the cited exemptions was misplaced.
Mr. Dyke requested access to:
all records in the possession of the Louisville Division of Police and its employees or agents relating to any basic incident reports which list an individual by the name of Ethel Phelps as either complainant or victim from January 1, 1995 until the date of this request.
The city responded on November 16, advising Mr. Dyke:
Your letter does not indicate that you represent Ms. Phelps. It is the position of the Louisville Division of Police that the privacy rights of victims of crime outweigh the public's interest in disclosure, therefore, we are denying your request. KRS 61.878(1)(a) (privacy) (i)(j) (preliminary, correspondence with private individuals).
This appeal followed.
In response to this office's notification of receipt of an open records appeal, the city elaborated on its position in a letter dated December 16, 1998. The city first identified the records in its custody which were responsive to Mr. Dyke's request:
The "Individual Victim Information" records are computer records containing a brief description of the facts surrounding the injury which is generally provided to the officer by the victim. Additionally, there are two reports which are the "standard report" forms (JC-3) used by the State to report suspected child, adult or domestic abuse. They resulted in the arrest of an individual, although it is questionable whether Mr. Dyke wishes to see arrest records since he didn't ask for them. The only "incident" report is still an open case: No arrests have been made. All records contain social security number, address, phone number, description of injuries, etc.
In general, the city described the responsive records as records "discussing details of criminal victimization reported by Ms. Phelps," some of which "refer to allegations of spouse abuse and assault." The city maintained that these records "do not further the public's knowledge of its police department . . . [or] expose the police action to public scrutiny." The city observed:
The Office of the Attorney General and the Courts in Kentucky have recognized that a tortfeasor or law-breaker can expect to forfeit his or her privacy rights. OAG 76-511, p. 4; 92-ORD-1261, p. 1287. Should victims expect to forfeit their privacy rights simply because a criminal has trespassed upon their life? Is a call to the police for help to be construed as the waiving of privacy rights by an individual? In 98-ORD-185, the Attorney General acknowledged that crime victims have privacy interests. The question is who decides that some crime victims are worthy of privacy protection while others are not?
In its view:
Ms. Phelps has not relinquished her privacy rights simply by bringing information about her criminal victimization to the attention of the police department. We do not believe the General Assembly intended that victims of crime are to be treated as the equivalent of tortfeasors or law-breakers. . . . If a determination is to be made that Ms. Phelps' privacy rights are entitled to no more protection than a law-breaker' s, that decision should come from a court with, it is to be hoped, some input from Ms. Phelps - the victim whose privacy rights are at stake.
In closing, the city asserted that the disputed records are also exempt pursuant to KRS 61.878(1)(i) or (j), insofar as "they are not final; they merely record communications from private individuals, they are an officer's notes about Ms. Phelps' allegations of criminal victimization; they certainly do not reflect final agency action in any sense of the phrase."
The City of Louisville has apparently adopted the position that "the privacy rights of victims of crime outweigh the public's interest in disclosure, " and implemented a policy of withholding records which reveal the identities of crime victims. The city urges us to do the same by affirming its policy. While the Attorney General has recognized, and continues to recognize, that victims of crime have a privacy interest in records which relate to them which may, in some instances, outweigh the public's interest in disclosure of those records, we are unwilling to abandon, in the absence of legislative or judicial repudiation of our position, twenty years of interpretation of the Open Records Law as it relates to records which reveal the identities of crime victims, and more fundamentally our statutorily assigned role as it relates to open records dispute resolution.
In an early opinion, this office stated that, in general, "the public interest in police business outweighs any privacy interest of victims, offenders, or police personnel." OAG 80-54, p. 3. Shortly thereafter, we elaborated on this view, explaining:
Secret police activity without some overriding justification is repugnant to the American system of government. Consequently, when a citizen reports a crime to the police he may generally expect that the news media will learn of the report.
[A law enforcement agency] is the servant of the people and if a citizen wants the services of [that agency] to investigate a crime, he cannot expect that the matter will be kept secret.
OAG 80-144, p. 1,2. On this basis, the Attorney General has consistently recognized through the years that victims' identities cannot be withheld and a public agency cannot adopt a policy of blanket nondisclosure relative to records revealing their identities. OAG 80-54 (public agency cannot adopt policy under which names of rape victims are withheld) ; 93-ORD-13 (affirming OAG 80-54); 94-ORD-133 (public agency cannot adopt policy under which all entries on 911 dispatch log are withheld) .
Presaging the Kentucky Supreme Court's decision in Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), in OAG 91-94 the Attorney General held that "in a given case, the privacy interests of the victims could outweigh the public's right to inspect government records." OAG 91-94, p. 5. This position evolved over time and in 96-ORD-115 we identified a number of factors which must be considered in determining whether the victim's privacy interest outweighs the public's interest in monitoring the activities of law enforcement agencies. These included the seriousness of the crime, the circumstances under which it was committed, and the adverse impact on the victim of further disclosure. 96-ORD-115, p. 5 (holding that portions of records revealing identity of juvenile victim of drive-by shooting could be withheld) ; compare, 98-ORD-123 and 98-ORD-185 (holding that public agencies improperlywithheld reports documenting accidental shootings of juveniles) . 1
Against this privacy interest, we weighed the competing public interest in determining "whether the public servants are indeed serving the public" and public agencies are properly executing their statutory functions. Board of Examiners at 828. Then, as now, we rejected the argument that no public interest is served by disclosure of records which recount "details of criminal victimization. " As noted above, "secret police activity without some overriding justification is repugnant to the American system of government," and disclosure of such records serves the principal purpose of the Act by enabling citizens to be informed as to what the police are doing in discharging their law enforcement duties. Recognizing the existence of these competing interests, we have held that it is incumbent on the agency advocating nondisclosure of records relating to an individual victim to satisfy its burden of proof that the privacy interests of that victim are superior to the public's interest in disclosure. "A record devoid of proof beyond a bare allegation as to the seriousness of the incident and the adverse impact on the [victim] of further disclosure will not support a denial based on KRS 61.878(1)(a)." 98-ORD-185, p. 7.
We decline the city's invitation to extend the protection afforded to public records containing personal information the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy to all records containing "details of criminalvictimization. " We continue to ascribe to the view that a policy of blanket nondisclosure of such records violates the Open Records Act. With respect to the records at issue in this appeal, we do not find factual justification for the city's position that disclosure would constitute a clearly unwarranted invasion of Ms. Phelps's privacy. Our review confirms that some of the records contain allegations of domestic violence, and others of a burglary, but none contains allegations of criminal victimization of such a serious character that nondisclosure of the records on the basis of KRS 61.878(1)(a) is warranted. 2 In the absence of proof that further disclosure of these records will have an adverse impact on the victim, we find that the City of Louisville improperly denied Mr. Dyke access to them. 3 Pursuant to KRS 61.878(4) 4 and the Kentucky Court of Appeals' decision in Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994), the city may redact items of information about Ms. Phelps which appear on the report, such as her social security number, "that reveal little or nothing about [the Division of Police's] conduct." Zink at 829.
Nor do we find that KRS 61.878(1)(i) and (j) authorize the city to withhold records of criminal victimization generally, or these records in particular. These provisions permit public agencies to withhold:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Clearly, the reports cannot be characterized as preliminary recommendations or preliminary memoranda in which opinions are expressed. As we have so often noted, KRS 61.878(1)(j) "is intended to protect the integrity of the agency's internal decision-making process by encouraging the free exchange of opinions and recommendations. " 94-ORD-132, p. 3; OAGs 90-97; 89-39; 88-85; 88-24; 86-69. The purpose underlying the exception is discussed at page 4 of OAG 88-85. There we observed:
Recommendations and opinions expressed by a subordinate to a superior should not be subject to public scrutiny. Otherwise, there would be a chilling effect cast upon the ability of the government to function as a system. There must be an open atmosphere among staff members whereby they may express their opinions, give recommendations and otherwise engage in a preliminary process in support of the ultimate decision-maker's final decision.
This purpose is not served by the nondisclosure of records of criminal victimization inasmuch as such records do not contain preliminary recommendations, opinions, or policy formulations. Simply stated, such records are not "subjective expression[s] of opinion but [are] objective report[s] of . . . fact." OAG 80-596, p. 3. In light of the rule of construction, codified at KRS 61.871, that the exceptions are to be strictly construed and thus given no greater application than is necessary to effectuate their purpose, we find that the city's reliance on KRS 61.878(1)(j) was misplaced.
We also reject the argument that KRS 61.878(1)(i) authorizes nondisclosure of the records as "correspondence with a private individual." In 94-ORD-133, this office held that this exception does not extend to oral complaints or communications, but is limited to "correspondence" as the term is commonly understood. We reasoned:
Consistent with the rule of statutory construction codified at KRS 446.080(4) that "words and phrases shall be construed according to the common and approved usage of language . . .," we believe that the term "correspondence" in KRS 61.878(1)(i) means "communication by exchange of letters," or "the letters exchange." Webster's II New Riverside University Dictionary (1988). The term cannot be construed to apply to oral complaints or communications recorded on an audio tape or to written notations appearing on a dispatch log which memorialize those complaints or communications.
94-ORD-133, p. 8. The Attorney General expressly overruled that portion of OAG 90-117 in which we held that KRS 61.878(1)(i) shields oral communications from disclosure. KRS 61.878(1)(i) is therefore also inapposite.
In closing, we note that the duties of the Attorney General relative to dispute resolution under the Open Records Act are clearly set forth at KRS 61.880(2). That statute provides:
(a) If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection. If the public agency refuses to provide a written response, a complaining party shall provide a copy of the written request. The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884.
(b) In unusual circumstances, the Attorney General may extend the twenty (20) day time limit by sending written notice to the complaining party and a copy to the denying agency, setting forth the reasons for the extension, and the day on which a decision is expected to be issued, which shall not exceed an additional thirty (30) work days, excepting Saturdays, Sundays, and legal holidays. As used in this section, "unusual circumstances" means, but only to the extent reasonably necessary to the proper resolution of an appeal:
(c) On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
KRS 61.880(2) directs the Attorney General to review open records appeals without reference to the nature of the record requested or the claimed exemption. The Attorney General cannot evade his statutory duty simply because the issues raised are sensitive ones involving personal privacy. Nor can he abdicate that duty in favor of the courts. Instead, he must proceed with his review of all properly presented open records appeals. We therefore reject the city's argument that resolution of this appeal, implicating as it does the privacy rights of a crime victim, should be left to the courts.
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 each of the cited decisions, the Attorney General recognized that juvenile victims of crime "have a heightened privacy interest in records relating to crimes against them, and are thus entitled to greater protection under KRS 61.878(1)(a) than adult victims of crime generally receive." 96-ORD-115, p. 4. This position was premised on the General Assembly's demonstrated commitment to the protection and care of children evidenced in KRS 600.010(a), KRS 620.050(4), KRS 610.320(3), and KRS 610.340. Nevertheless, we again "stopped short of approving a policy of blanket nondisclosure relative to records disclosing the identities of juvenile victims of crime. " Id.
2 We do not comment on the applicability of KRS 209.140, providing for the confidentiality of information obtained by the Department of Social Services, or its delegated representative, as a result of an investigation of adult abuse under chapter 209 of the Kentucky Revised Statutes. The City of Louisville did not rely on this provision, and we must therefore assume it has no application to the disputed records.
3 In Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575 (1994) and Lexington-Fayette Urban County Government v. Lexington Herald Leader, Ky. 941 S.W.2d 469 (1997), Kentucky's Supreme Court recognized the rights of parties affected by disclosure of records containing information of a personal nature to be heard on the issue of disclosure. In the appeal before us, nothing precluded the city from submitting to this office, and indeed we would have welcomed, Ms. Phelps's input on the issue of further disclosure of the records.
4 KRS 61.878(4) provides as follows:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.