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 Bowling Green Police Department violated the Open Records Act in responding to Daily News reporter Jason Riley's requests for access to two incident reports involving juvenile victims of crimes. For the reasons that follow, we find that the department's response was procedurally deficient, and that the department erred in refusing to honor a request which was not submitted on its standard request form. However, we find that the department's denial of Mr. Riley's requests was substantively correct.
In January, 1999, the Bowling Green Police Department issued three information release forms dealing with incidents involving juvenile victims. The forms provided particulars of the incidents, but excluded any reference to the juvenile victims' identities or addresses. After each of the information release forms was issued, Mr. Riley requested access to the incident report filed by the investigating officer, or, if the case was still under investigation, the names of the juvenile victims "and general information about the case." The department did not respond to these requests. Daily News city editor, Robyn L. Minor, was later advised that Mr. Riley's requests had been referred to the city attorney, and that "the city did not recognize the requests because they were not on a city-issued open records request form." Relying on 98-ORD-185, Daily News managing editor David C. L. Bauer initiated this appeal, arguing that that decision "clearly establish[es] that the names and addresses and such 'directory information' about juveniles who are not charged with an offense is subject to release [sic]."
Prompted by Mr. Bauer's appeal, the department responded to Mr. Riley's requests through city attorney Eugene Harmon on January 29. Mr. Harmon indicated that he did not interpret 98-ORD-185 to require wholesale disclosure of information relating to juvenile crime victims. He reasoned:
Page 5 of that opinion notes that the Attorney General's office still abscribes [sic] 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. This opinion then notes several OAG opinions in which that office upheld the denial of certain records. On page 6, the opinion also noted that the Attorney General's office recognized that law enforcement records might enjoy protection from disclosure as interpreted in 96-ORD-115 if the circumstances were such that public disclosure would constitute a clearly unwarranted invasion of personal privacy.
Noting that the incident reports involve a 13 year old victim of third degree sexual abuse and a 10 year old victim of first degree sexual abuse, he took the position "that the privacy interest of these juveniles based on the nature of the alleged crimes outweigh the benefit to the public that would be derived from identifying those juveniles. " In support, Mr. Harmon cited KRS 61.878(1)(a) and 61.878(1)(l). Additionally, Mr. Harmon cited KRS 61.878(1)(h), explaining that both cases "are active, ongoing investigations," and that the information release forms contain all information that "the city feels comfortable releasing. . . ." In closing, he reminded the Daily News that "the Police Department has established policies and procedures for requesting public records" with which it must comply "for all future requests."
On the same day that Mr. Harmon responded to the Daily News's request, he corresponded with this office, elaborating on the department's position. He reaffirmed the view that the Daily News interprets 98-ORD-185 "too broadly when it makes the assertion that the City of Bowling Green is now required to provide incident reports on all crimes, including all crimes where the victim is a juvenile regardless of the nature of that crime." Although it is the policy of the Bowling Green Police Department to release incident reports to the press, Mr. Harmon explained, the Department maintains that it is not required to release the identities of juvenile crime victims "depending on the nature of the crime committed. . . ." Given the nature of the crimes committed against these juvenile victims, Mr. Harmon argued that these victims "have a certain amount of privacy that should be protected under KRS 61.878(1)(a) as well as KRS 61.878(1) (h)." On the facts presented, we concur.
In 1996, this office first addressed the question 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 answered this question affirmatively, observing 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.
96-ORD-115, p. 4. Nevertheless, we stopped short of approving a policy of blanket nondisclosure relative to records disclosing the identities of juvenile victims of crime, concluding 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.
96-ORD-115, p. 4. In that decision, which involved the juvenile victim of a drive-by shooting, we held that the harm to the juvenile's personal privacy resulting from release of her identity outweighed the public's interest in disclosure, reasoning that:
In reaching this determination, we consider a number of relevant factors, including the seriousness of the crime, the circumstances under which it was committed, and the adverse impact on the juvenile victim of further disclosure. These factors, coupled with the heightened privacy interest with which children have been legislatively invested, compel this result.
96-ORD-115, p. 5.
In 1998, the issue was again presented to this office in the context of separate and distinct factual scenarios. On these occasions we reaffirmed the holding in 96-ORD-115, but arrived at the conclusion that the privacy interests of the juvenile victims did not outweigh the public's interest in disclosure. In 98-ORD-123, an appeal involving the accidental shooting of a young child, we distinguished our earlier decision and concluded that "the circumstances of the incident giving rise to [the child's] injuries were not of such a serious nature that they can be likened to the allegations of sodomy and sexual abuse with which we dealt in 93-ORD-42, or the drive-by shooting with which we dealt in 96-ORD-115." Although we could not approve the public agency's denial of a request for the child's identity, we held firm to the position taken in 96-ORD-115.
Similarly, in 98-ORD-185 we affirmed the position taken in 96-ORD-115, but found that the nature of the incident in that appeal, which also involved the accidental shooting of a young child, did not give rise to a privacy interest that was greater than the public interest in monitoring the investigation. It is instructive to quote from that decision:
This office has made its position clear on the scope and applicability of KRS 610.320(3) [relating to juvenile law enforcement and court records]. . . . 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). [Footnote omitted.] 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 [the] 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.
. . .
Nevertheless, in 98-ORD-123 we recognized that a law enforcement record, "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 .
98-ORD-185, p. 4-6 (emphasis added). Again, our position remained unchanged. KRS 610.320(3) prohibits disclosure of juvenile law enforcement records, but does not apply when the law enforcement records relate to a juvenile victim of crime; nevertheless, portions of those law enforcement records revealing the identity of the victim may be withheld under authority of KRS 61.878(1)(a) when, because of the nature and circumstances of the crime perpetrated against the juvenile, his privacy interests outweigh the public's interest in disclosure.
We believe that the appeal before us presents just such a case. The incidents giving rise to this appeal involve, in one case sexual contact by forcible compulsion of a ten year old child by her thirteen year old cousin, and in the other case sexual contact of a thirteen year old male and a ten year old female by a fifteen year old male playmate. Both incidents were of a sufficiently serious character that they were classified as sexual abuse. Moreover, the circumstances of these incidents, involving as they do the apparent perversion of a relationship of trust, were particularly egregious. Finally, these juvenile victims will almost certainly suffer additional trauma by public disclosure of their names, exposing them to embarrassment and possible ridicule. As in 93-ORD-42 and 96-ORD-115, we believe that the harm to the juveniles which would result from disclosure of their identities outweighs the public's interest in unrestricted access to records revealing their identities. This resolution turns on the specific facts presented here in contrast to the facts presented in 98-ORD-123 and 98-ORD-185. We affirm the Bowling Green Police Department's refusal to disclose the names and addresses of these juvenile victims.
We decline to comment on the department's policy of releasing unredacted incident reports to the press except when the incident involves a juvenile victim. In the latter case the department issues an edited information release form. Our function under KRS 61.880(2) is restricted to determining whether the department has violated the Open Records Act in responding to two requests for particular records, and not in reviewing its information dissemination policies. The former determination is, as noted, made on a case by case basis.
It is, however, clearly within our statutory function to determine if the department violated the Open Records Act in failing to respond to Mr. Riley's requests in writing and within three business days. In our view, the department's inaction constituted a procedural violation of the Act. KRS 61.880(1) establishes guidelines for public agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
To the extent that the Bowling Green Police Department failed to respond to Mr. Riley's requests, as required by KRS 61.880(1), we hold that it violated the Open Records Act. The fact that Mr. Riley did not use the standard open records application when he made his requests does not alter this conclusion. In 94-ORD-101, this office held:
While the public agency may require a written application, as opposed to an oral request, there is nothing in the statute which authorizes a public agency to reject a request simply because the requestor did not use the specific form devised by the public agency. A particular form may be desired or suggested by a public agency but failure to use that form cannot be the basis for rejecting a request to inspect records.
A public agency cannot demand or require more in regard to a request to inspect public records than is required by KRS 61.872(2). The public agency may require, if it desires to do so, that a request or application be in writing. If a written request or application is required, the statute is satisfied if the written application whether or not submitted on the public agency's form contains the following:
94-ORD-101, p. 2, 3; see also OAG 76-588. The Bowling Green Police Department violated the Open Records Act when it failed to honor Mr. Riley's requests because they were not submitted on the particular form utilized by the agency.
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.