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 Division of Police violated the Open Records Act in the disposition of The Courier-Journal's "ongoing open records request for police incident reports." For the reasons that follow, we find that an ongoing, or standing, open records request is not proper under the Open Records Act and that the City therefore cannot be said to have violated the Act by placing redacted copies of incident reports "at a front desk for anyone to pick . . . up" without a written explanation for those redactions. Further, we find that although existing authority does not support a policy of blanket redaction of the names and addresses of crime victims from police incident reports in response to a properly framed open records request for existing reports, a developing body of state and federal case law compels us to reevaluate our position on the question of redacting the names and addresses of victims of the sexual offenses identified in Chapter 510 of the Kentucky Revised Statutes from such reports. Based on these authorities, we find that the privacy interests of the victims of these singularly traumatic crimes in avoiding public exposure outweighs the public interest in monitoring police investigative action, and that except on rare occasion the names and addresses of rape victims may be redacted from incident reports before they are disclosed to an open records applicant.
On December 6, 2001, Jon L. Fleischaker initiated an open records appeal on behalf of his client, The Courier-Journal, requesting "review of a denial of a continuing open records request by The Courier-Journal, to the City of Louisville Division of Police." He explained that the Division disclosed incident reports for the months of August, September, and October, 2001, but redacted the names and addresses of the victims and the locations of the crimes "without giving any explanation whatsoever." Mr. Fleischaker attached copies of the redacted incident reports, but did not attach a copy of The Courier's open records request. Anticipating the City's argument that the redactions were justified under KRS 61.878(1)(a) , he maintained that disclosure of this information does not constitute an unwarranted invasion of personal privacy. In support, he cited the Kentucky Court of Appeals' decisions in Bowling v. Brandenburg, Ky. App., 37 S.W.3d 785 (2001) and Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994), the Kentucky Supreme Court's decision in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky. 826 S.W.2d 324 (1992), and various open records opinions of this office dating back to 1980 which recognize that a police department cannot adopt a policy of withholding the names of victims of crimes, including rape victims or victims of sex crimes. Citing 93-ORD-13; OAG 80-144; OAG 80-54. It was Mr. Fleischaker's position that the City's policy of blanket redaction of information appearing on the incident reports is inconsistent with the case specific approach to records access envisioned by the courts in Board of Examiners, Bowling, and Zink.
On behalf of the City of Louisville Division of Police, Assistant Director of Law Stephanie Harris responded to The Courier-Journal's appeal on December 21. She began by noting that the Division "is unaware of any ongoing open records request by The Courier Journal for incident reports," but indicated that even if such a request had been submitted, it would have been denied "because the Division does not usually honor ongoing requests for records. (See 97-ORD-18)." Continuing, Ms. Harris explained:
As we understand it, the Division leaves incident reports at a front desk for anyone to pick them up. No open records request is required. Nevertheless, we do not intend to rely on ceremony. Even if a proper open records request were made, the Division's response would be the same, with the requisite written response citing the statutory basis for the partial denial.
Turning to the substantive issue on appeal, she invoked KRS 61.878(1)(a), asserting that "the names and other personal identifying information of victims of rape or sexual assault are properly redacted . . . as an unwarranted invasion of privacy. " In support, Ms. Harris cited a recent Sixth Circuit Court of Appeals decision, De'ja Vu of Nashville Inc., et al. v. The Metropolitan Government of Nashville & Davidson County, TN, et al., F.3d (6th Cir. 2001), in which the federal circuit court held that the names and addresses of exotic dancers constituted private information and was not subject to disclosure. She argued that the "victims of rape and sexual assault (and perhaps all victims) have at least as much right to privacy as nude-dancers," and expressed the view that "Kentucky courts would agree." In defense of the City's current policy, Ms. Harris explained that in response to requests from victims advocacy organizations, the Division of Police modified its policy in June, 2001, and has since withheld the names and addresses of victims of rape and sexual assault. In closing, Ms. Harris advised that the Louisville Division of Police will adhere to its policy of withholding the identities of victims of rape and sexual assault "until a court of law rules that rape and sexual assault victims are not entitled to such protection."
On appeal, we are asked to determine:
1. Whether the City violated KRS 61.880(1) by failing to provide a written explanation (including citation to one or more of the exceptions codified at KRS 61.878(1)(a) through (l)) for the withholding of victims' names and addresses from incident reports placed on a desk for public inspection; and
2. Whether the City may, on the basis of KRS 61.878(1)(a), withhold the names and information identifying victims of sexual offenses from incident reports requested by an open records applicant.
The answer to the first question is an unconditional no; the answer to the second question is a conditional yes. Our analysis follows.
Purported violation of KRS 61.880(1)
The Courier-Journal objects to the City's failure to offer any explanation for the redactions of the names and addresses of victims, and locations of crimes, from the police incident reports released in August, September, and October, 2001. We believe that this objection is without merit given the fact that The Courier had not submitted specific written requests for these records, but instead relied on an ongoing, or continuing, request of which the Division of Police has no record. This office has recognized that ongoing, continuing, or standing requests for public records are not proper under the law and need not be honored. Thus, in OAG 91-78, the Attorney General affirmed the actions of a public agency when it refused "to issue a blanket release of documents to be used by the [agency] in futuro." OAG 91-78, p. 4. We reaffirmed this position a year later when we stated that the office of Attorney General "has never recognized the validity of a standing request." OAG 92-30. See also, 95-ORD-43 (holding that a standing request for electronically stored records in the custody of the county clerk was procedurally deficient); compare, OAG 90-112, p. 3 (holding that a request for all "automobile accident reports prepared by the Kentucky State Police Department, London Post, . . . for a period of four (4) weeks prior to the date of inspection period," specifically identified the records sought, and must be honored). This line of authorities clearly supports the view that the Open Records Act regulates access to existing records only.
We concluded our analysis in OAG 90-112 by noting that a public agency may "require a separate application for inspection of specific records each time an applicant desires to inspect public records. " OAG 90-112, p. 6. This position is firmly rooted in KRS 61.872(2), and reflects the view that "the procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 94-ORD-128, p. 2; 95-ORD-43, p. 3.
It is apparently the practice of the City of Louisville Division of Police to place redacted copies of its incident reports "at a front desk for anyone to pick them up." In the absence of evidence to the contrary, we assume that this is how The Courier-Journal obtained copies of them, no specific open records request having been submitted to the City, or to this office on appeal. Under these circumstances, we do not believe the City can be faulted for failing to discharge duties otherwise imposed on it under KRS 61.880(1) by issuing a written response that includes a statement of the specific exception authorizing partial nondisclosure and a brief explanation of how the exception applies to the entries withheld. If The Courier wishes to continue to avail itself of access to police incident reports by means of on site inspection and copying at the desk designated for this purpose, it cannot properly complain about the City's purported procedural noncompliance. If The Courier demands full procedural compliance with the requirements of the Act on the part of the City, The Courier must itself fully comply with the procedural requirements of the Act set forth at KRS 61.872(2), requiring "written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected."
Redaction of names and personal identifiers of crime victims
As noted, Mr. Fleischaker did not furnish us with a copy of an open records request for incident reports submitted by The Courier-Journal, ongoing or otherwise, but did furnish us with the incident reports obtained. Our review of those reports discloses certain salient facts:
1. There is no consistent pattern in redacting information in the reports. In some but not all instances, the location of the crime is redacted. In some but not all instances, the victim's race, sex, and date of birth are redacted. In some but not all instances, information relating to the subject (such as whether he or she was named or known, whether he or she was described, whether his or her vehicle was identified) is redacted;
2. The redacted incident reports document offenses ranging from rape in the first degree to assault, robbery and theft by unlawful taking. Information is redacted from each report regardless of the alleged offense.
It is the opinion of this office that the City's policy of making random redactions of this character in response to a properly framed open records request for existing incident reports documenting offenses other than the sexual offenses identified in KRS Chapter 510 is, in general, legally unsupportable. In an open records decision directed to the City less than two years ago, this office determined that its policy of withholding records which reveal the identities of crime victims was improper. 99-ORD-27. At page 3 of 99-ORD-27, we held:
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 . . . .
99-ORD-27, p. 9. Our records do not indicate that 99-ORD-27 was appealed to the circuit court. Accordingly, pursuant to KRS 61.880(5)(b) that decision has the force and effect of law. A copy of 99-ORD-27 is attached hereto and incorporated by reference.
Nevertheless, both the City of Louisville and The Courier-Journal focus on one particular category of offenses, and redacted information relating thereto, specifically the names and addresses of victims of sexual offenses and the locations at which the offenses occurred. Both emphasize the importance of recent legal authority supporting their widely divergent views. We share the parties' view that these authorities warrant careful review, and believe that this appeal provides the occasion for the Attorney General to reevaluate his position on mandatory disclosure of the names and information identifying victims of the sexual offenses enumerated in KRS Chapter 510. 1 Acknowledging that there is a compelling public interest in access to records reflecting the identities of crime victims, we find that a developing body of federal and state case law, coupled with a perhaps long-overdue recognition of the singularly traumatic consequences of crimes of sexual violence, require us to modify our position.
With no existing published case law, and therefore no framework within which to conduct his analysis, in OAG 80-54 the Attorney General opined that "a police department cannot adopt a policy of withholding the names of victims, including the crime of rape. " There we held that "generally the public interest in police business outweighs any privacy interest of the victims, offenders or police personnel." Recognizing that "if changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the Court," we reached this conclusion because "there is no statutory provision for . . . an exception [for rape victims' identities]."
Several years would pass before Kentucky's courts had occasion to make such subtle interpretations in the law of personal privacy. However, in 1992 the Kentucky Supreme Court was asked to determine if the Board of Examiners of Psychologists discharged its duty under the Open Records Act by disclosing complaints of sexual misconduct (omitting the complainants' names), leveled against a psychologist, along with the final order in the matter, his license application, and the results of his licensing examination, or if it was also required to disclose the complaint file. The Court held that the complaint file, containing patient records that were rife with information "touch[ing] upon the most intimate and personal features of private lives," could properly be withheld. Kentucky Board of Examiners of Psychologists v. Courier Journal and Louisville Times Co., 826 S.W.2d 324, 328 (1992). Employing a mode of decision in which the public interest in disclosure is weighed against the privacy interests implicated, and acknowledging that the Open Records Act "exhibits a general bias favoring disclosure, " id., the Court nevertheless concluded:
Mindful that the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity, and that the Board has in this case effectually promoted the public interest in regulation, and that there is a countervailing public interest in personal privacy, here strongly substantiated, we hold that further disclosure of information contained in the public record in this case would, as a matter of law, constitute a clearly unwarranted invasion of personal privacy.
Id. at 328, 329.
Although the Court directed a "case-specific approach" to the question of whether an invasion of privacy is "clearly unwarranted, " id. at 328, it nevertheless recognized the common privacy interests of the psychologist's former clients in avoiding the devastating consequences of public disclosure of intimate sexual matters relating to them. Two years later, the Kentucky Court of Appeals determined that the common privacy interests of injured workers, required to submit certain documents to the Kentucky Labor Cabinet as a condition of receiving workers compensation benefits, in the nondisclosure of their home addresses, wage data, and social security numbers was superior to the public's interest in disclosure, and that these items of information could therefore be withheld. Zink v. Commonwealth, Ky., App., 902 S.W.2d 825 (1994). Such information, the court noted, "would not in any real way subject agency action to public scrutiny." Id. at 829. Conversely, the court reasoned, "[o]ne of our most time-honored rights is the right to be left alone, and we fail to see how an individual who happens to have suffered a work-related injury should have that right disturbed merely because of the injury reporting requirement . . . ." Id. In closing, the court commented that parties other than those with an interest in monitoring public agency conduct, including "the merely curious, would have the same access under the Open Records Act . . . ." Id. 2
Shortly thereafter, the Supreme Court recognized the right of a person affected by the decision of a public agency to release records under the Open Records Act to challenge the release of the records on grounds that they contain personal information the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. Beckham v. Board of Education, Ky., 873 S.W.2d 575 (1994). At page 578 and 579 of that decision, the Court reiterated that "the personal privacy exclusion [is] of sufficient importance to overcome the disclosure bias of the Act and that public interest and public curiosity [are] not always synonymous." Id. at 578, 579. Within a few short years, the Court of Appeals opined that the release of records documenting a request for police assistance could, in some instances, "have a chilling effect on those who might otherwise seek assistance . . . ." Bowling v. Brandenburg, Ky. App., 37 S.W.2d 785, 788 (2000).
Recently, the Sixth Circuit Court of Appeals has analyzed the concept of a protected privacy interest in various factual settings. In Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), the Sixth Circuit Court of Appeals held that liability existed under 42 U.S.C. Section 1983 for disclosure of public records placing undercover police officers and their families at substantial risk of serious bodily harm. The court thus recognized a constitutional right to nondisclosure of certain types of private information that implicate a fundamental liberty interest. Similarly, in Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), the Sixth Circuit held that the plaintiff raised a cognizable privacy claim under Section 1983 when a public official disclosed the intimate details of plaintiff's sexual assault. The court placed "public officials in this circuit . . . on notice that such a privacy right exists . . ." Bloch at 687. Finally, in De'ja Vu of Nashville Inc., et al. v. The Metropolitan Government of Nashville & Davidson County TN, et al., F.3d (6th Cir. 2001), the Sixth Circuit determined that the portion of an ordinance regulating sexually oriented businesses requiring applicants (including entertainers), to disclose their names and addresses was not unconstitutional based on its decision in Kallstrom. The court observed:
Kallstrom held that police officers have a constitutionally protected privacy interest in their otherwise-public personnel file information, which includes addresses, phone numbers, and family member information, when the release of that information creates "a very real threat to the officers' and their family members' personal security and bodily integrity, and possibly their lives." Kallstrom, 136 F.3d at 1063. Here, the plaintiffs presented significant evidence that the requirement that applicants submit their names and past and current addresses to a public forum poses serious risks to their personal security.
Applying Kallstrom's reasoning to the facts before it, the Sixth Circuit concluded that the applicants'/entertainers' names and addresses "constitute protected private information." De'ja Vu at 32.
Based on these state and federal authorities, we find that the City of Louisville Division of Police may properly rely on KRS 61.878(1)(a) in withholding the names and information identifying the victims of sexual offenses from incident reports requested by open records applicants. It is our opinion that the victims of these crimes share a substantial privacy interest in the nondisclosure of their identities. This privacy interest is postulated on the victims' need to avoid public exposure as they cope with the singularly traumatic physical and psychological consequences of the crimes perpetrated against them, crimes that have been characterized as the "ultimate violation of self." Coker v. Georgia, 433 U.S. 584, 597 (1977) cited in Justice White's dissent in Florida Star v. B.J.F., 491 U.S. 524, 542-43 (1989). Against this substantial interest, we weigh the competing public interest in monitoring the Division's investigative response to the sexual offense reported. While this too is a substantial interest, we do not believe that it outweighs the privacy interests of victims of sexual offenses, particularly when those privacy interests are coupled with a compelling public interest in insuring the physical safety of the victims and encouraging them to report sexual offenses without fear of exposure. As the Court in Board of Psychologists attached the same weight to the clients' privacy interests in their complaint files, and the court in Zink attached the same weight to the injured workers' privacy interests in their home addresses, wage data, and social security numbers, we attach the same weight to the privacy interests of the victims of sexual offenses in their names and information identifying them. We conclude that, in general, that interest outweighs the public's interest in scrutinizing the Division's response, an interest that is otherwise served by disclosure of the redacted incident reports. 3 Thus, we find that the Division of Police may redact the names and addresses of the victims of sexual offenses, the location of the offenses if the offenses occurred in the victim's homes, and the complainants' signatures if the complainant and victim are one and the same. 4 No other redactions are permissible.
We are aware that this decision represents a significant departure from previous open records decisions of this office. To the extent these decisions are inconsistent, they are hereby modified. We continue to ascribe to the view that the Division may not withhold the identities of all crime victims as a matter of policy, and believe that the majority of cases will be governed by the rule announced in 96-ORD-115 and 99-ORD-27. Further, we believe that in rare instances, such as where the victim of a sexual offense has "gone public," or other circumstances in which the victim has evidenced a waiver of privacy, that victim's privacy interests may be subordinate to the public's interest in disclosure. The position we take today is limited to the names and information identifying victims of sexual offense that appear in incident reports.
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.
Footnotes
Footnotes
1 These offenses consist of rape in the first, second, and third degree, sodomy in the first, second, third, and fourth degree, sexual abuse in the first, second, and third degree, and sexual misconduct.
2 The Attorney General's position on disclosure of crime victims' identities has undergone considerable change since OAG 80-54 was issued. This evolution in thought is reflected in the analysis contained on page 4 of 99-ORD-27, a copy of which is enclosed.
3 The redacted report will document the occurrence of the crime, the location of the crime (in most instances), the assailant's physical characteristics, and other information that will enable the public to assess the investigative process at its inception.
4 Any other crime for which this information is sought will undergo the standard privacy analysis.