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 Barren County Sheriff's Department properly relied on KRS 61.878(1)(a) in partially denying Roberta Sowers' June 6, 2000, request for a copy of "the entire report, including pictures and any other documents that pertain to the shooting deaths of Joey Sowers and Shane Smith on February 21, 2000." Ms. Sowers did not receive a written response to her request, prompting her to initiate this open records appeal. For the reasons that follow, and upon the authorities cited, we conclude that the Department's reliance on the cited exemption was partially misplaced. Nevertheless, it is the opinion of this office that the Department properly withheld, and may continue to withhold, photographs of the victim, Shane Smith, recorded 911 transmissions relating to the crimes, and Cyndie Smith's recorded statement describing the crimes.
In a response directed to this office following commencement of Ms. Sowers' appeal, Barren County Sheriff Barney Jones advised that his office had "previously responded to Ms. Sowers' request through her attorney, Robert M. 'Buddy' Alexander." He enclosed a copy of his May 24 response, along with a copy of a letter he had received from Mrs. Smith's attorney, John Rogers, incorporating both letters "as part of [the Department's] response and re-asserting all the reasons for . . . denial listed therein." Continuing, Sheriff Jones observed:
In addition to Shane Smith, his wife, Cyndie Smith, and their three young children were victims of this crime. Ms. Smith was abducted from her home by Joey Sowers, leaving two of [the Smith's] children home alone with Mr. Smith's body. Mr. Sowers then took Ms. Smith to a nearby residence, committed additional crimes, and then killed himself in her presence.
It is the position of this office that the release of any items, other than those listed in the attachment to the May 24, 2000, letter to Ms. Sowers' attorney, are exempt from public disclosure under KRS 61.878(1)(a).
To facilitate our review, Sheriff Jones furnished this office with copies of all records, photographs, and audiotapes in the investigative file. Those records were not disclosed to third parties, and have since been destroyed. KRS 61.880(2)(c).
In her letter of appeal, Ms. Sowers challenges the Department's reliance on KRS 61.878(1)(a), arguing that no privacy interests are implicated "since the Smith family knows all the facts and we need to know also in order to bring some closure for my family concerning this tragedy that has invaded both our families." She states:
Joey is my son, [and] he shot and killed Shane Smith, then took his own life in the presence of Mrs. Smith.
In closing, Ms. Sowers asserted her right to the records under the Open Records Act. In our view, she is only partially correct. Her rights under the Act are, like any other member of the public, circumscribed to some extent by the competing privacy interests of the victims of the crime.
KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In 1992, the Kentucky Supreme Court established a standard by which we judge the propriety of a public agency's reliance on KRS 61.878(1)(a) as a basis for denying access to public records. At page 327 and 328 of Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the Court articulated the following standard:
Given the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
The Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity . . . ." Id.
In an even more recent analysis of the privacy exemption, the Court of Appeals refined this standard. Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825 (1994). At page 328 of that opinion, the court discussed its "mode of decision:"
Our analysis begins with a determination of whether the subject information is of a 'personal nature.' If we find that it is, we must then determine whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy. ' This latter 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. [ Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
Having recognized a cognizable privacy interest in the records at issue in that case, the court turned to the issue of whether an invasion of privacy was warranted based on a weighing of the public interest in disclosure against the privacy interest involved. The court reasoned:
We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principle purpose of the Open Records Act. This is the approach the United States Supreme Court has taken in a similar analysis of requests under the Freedom of Information Act (FOIA). See Dept. of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 774-75.109 S. Ct. 1468, 1482-83, 103 L. Ed. 2d 774, 796-97 (1989). As stated in Board of Examiners, supra, "the public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of records may reveal whether the public servants are indeed serving the public, and the policy of disclosure provides impetus for an agency steadfastly to pursue the public good. " 826 S.W.2d at 328. At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
Zink at 828, 829. The court thus established a bright line test for determining if a public agency's invocation of the privacy exception was proper on the facts presented.
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 had consistently recognized through the years that victims' identities could not be withheld and a public agency could not 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 improperly withheld reports documenting accidental shootings of juveniles).
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.
The record before us speaks for itself. The events of February 21, 2000, are recounted in graphic detail. Coupled with this record is the letter submitted on behalf of the victims of the crime by their attorney, Mr. Rogers, in which they assert their right of privacy in certain records found in the investigative file, and Sheriff Jones' response in which he, too, raises their privacy claim. While we cannot adjudicate the victims' claim of KRS 61.878(1)(a) exclusion under KRS 61.880(2), which limits are review to disputes between a complainant and a public agency, we can factor into our analysis the victims' desire to prevent disclosure of the disputed records. It is in this light that we conclude that the information contained in the investigative file is of a personal nature, "touching upon the most intimate and personal features of private lives." Board of Examiners at 328, and thus satisfies the first part of the two-part analysis established by the Kentucky Supreme Court. See also, New York Times Company v. National Aeronautics and Space Administration, 782 F.Supp. 628 (D.C. Cir. 1991) (recognizing privacy interests of families of space shuttle Challenger explosion victims in voice recording of moments leading up to explosion); State v. Rolling, 1994 WL 722891 (Fla. Cir. Ct.) (recognizing a right of privacy for relatives of murder victims in photographs of victims' bodies); OAG 90-56 (recognizing privacy rights of surviving victims of twelve hour hostage siege that culminated in murder/suicide in tape recording of hostage negotiations).
The competing public interest in inspecting records that facilitate public oversight of law enforcement officials in the discharge of their official duty to investigate the crimes cannot be discounted. As the Florida court noted in Rolling , above:
The public interests involved are weighty interests, and the [disputed records] are relevant to the ability of the public to hold public officials accountable for their actions.
Rolling at 6. Simply stated, these records reveal whether the Barren County Sheriff's Department properly executed its statutory function. Board of Examiners at 328. Weighing the compelling privacy interests of the victims against the public's right to know, we find that the Department's reliance on KRS 61.878(1)(a) to authorize nondisclosure of a significant portion of its investigative file was misplaced, and that only those records identified below were properly withheld. The victim's privacy interests are not superior to the public's right to inspect the remaining records, and, pursuant to KRS 61.878(1)(h), the investigation having been closed and no enforcement action contemplated, those records are open. A general description of the categories of records in the Sheriff's investigative file, and an analysis of the propriety of his reliance on KRS 61.878(1)(a) in relation to those records, follows:
Records not protected from disclosure by KRS 61.878(1)(a)
A review of the investigative file discloses nineteen categories of records that, in our view, do not qualify for exclusion under KRS 61.878(1)(a). They are:
1. Detective Terry Harris' investigative notes from February 21, 2000, and follow-up notes;
2. Witness statement dated March 6, 2000;
3. Diagram of crime scene at Smith and Botts residences;
4. All pertinent dispatch records for November 6, 1999, and February 21, 2000;
5. Consent to search Joey Sowers' rental house dated February 21, 2000;
6. Report of Forensic Laboratory Examination dated May 23, 2000;
7. Medical examiner's report on Shane Smith dated February 22, 20000;
8. Request for examination signed by Det. Harris on February 28, 2000 and directed to Kentucky State Police Laboratory (with attachment);
9. Coroner's death certificate for Shane Smith;
10. Post-mortem examination of the body of Shane Smith and Joey Sowers;
11. Final diagnosis of cause of Shane Smith's and Joey Sowers' death;
12. Justice Cabinet's Office of Chief Medical Examiner's recommendation for Shane Smith's and Joey Sowers' certificates of death directed to Coroner Mike Swift;
13. Toxicology reports for Shane Smith's blood and urine;
14. Two documents prepared by Det. Harris on Barren County Sheriff letterhead, and dated February 21, 2000, relating to murder weapon (if not already disclosed);
15. March 6, 2000, response from Bluegrass Cellular to Det. Harris relating to subpoena for Joey Sowers' February, 2000, cellular phone records, and the records themselves;
16. Subpoena Duces Tecum to Bluegrass Cellular for Joey Sowers' February, 2000, cellular phone records;
17. Kentucky State Police Communication Log entry from November 6, 1999, and fax cover sheet;
18. From packet of photographs labeled "Shane Smith": photographs of Playmate Cooler, Toyota truck, basement door, Sowers' mailbox, envelope removed from Sowers' mailbox;
19. From packet of photographs labeled "Joey Sowers": all photographs.
As the authorities cited above amply demonstrate, access to records of law enforcement agencies that are compiled in the process of investigating crimes is, after the investigation and enforcement action is concluded or no enforcement action contemplated, the rule and not the exception. KRS 61.878(1)(h) thus provides that "unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action." With reference to this exception the Attorney General has, on more than one occasion, observed:
Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.8870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously . . . .
95-ORD-95; 96-ORD-155; 97-ORD-129. In the appeal before us, the investigation is concluded and no enforcement action is contemplated. Accordingly, these records cannot be withheld pursuant to KRS 61.878(1)(h). Nor can they be withheld pursuant to KRS 61.878(1)(a). Notwithstanding the fact that they document what is undoubtedly a painful memory for the victims and victims' family, we find that the public's interest in insuring that the Barren County Sheriff's Department properly discharged its duty to investigate the crimes outweighs their privacy interest in the records.
Records protected from disclosure by KRS 61.878(1)(a)
Nevertheless, it is the opinion of this office that with respect to those records listed below, the Barren County Sheriff's Department properly denied Ms. Sowers' request on the basis of KRS 61.878(1)(a):
1. Photographs of the Smith residence that depict the murder victim, Shane Smith;
2. Cyndie Smith's recorded statement; and
3. Recorded 911 transmissions relating to the crimes.
We believe that under that line of decisions recognizing a victim's right of privacy in records relating to the crimes perpetrated against him or her depending on the seriousness of the crime, the circumstances under which it was committed, and the adverse impact on the victims of further disclosure, these records clearly qualify for exclusion. Mr. Smith was murdered by an intruder in his home while his wife and children slept in the bedrooms above. The children were left along in the home with the body of their murdered father while the murderer abducted Mrs. Smith, forcibly entered another residence, perpetrated additional crimes against her, and committed suicide in her presence. It is safe to say that disclosure of the records identified above will further traumatize these victims. Acknowledging that the public has a cognizable interest in inspecting these records, since they document, in part, the Sheriff's Department's investigation into the crimes, we nevertheless find that these particularly sensitive records warrant protection under KRS 61.878(1)(a). We therefore affirm the Barren County Sheriff's Department's denial of this portion of Mrs. Sowers' request.
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 proceedings.