Opinion
Opinion By: Albert B. Chandler III, Attorney General; Ryan Halloran, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Crime Victims Compensation Board violated the Open Records Act in partially denying Courier-Journal reporter R. G. Dunlop's March 27, 2003 request for records relating to Claim CV-94-210. For the reasons that follow, and based upon the authorities cited, we affirm in whole CVCB's refusal to disclose the Supplementary Report to the Uniform Offense Report, the Report of the Forensic Laboratory Examination, and certain personal information related to the victim of the alleged offense giving rise to Claim CV-94-210, the person who reported the alleged offense, the perpetrator of the alleged offense, and the claimant who was granted compensation for medical costs incurred by the victim as an apparent consequence of the alleged offense.
In a response dated March 28, 2003, CVCB attorney G. Mitchell Mattingly provided Mr. Dunlop with "copies of the entire file," 1 with the exceptions noted above, explaining:
[T]he Supplementary Report details the traumatic events suffered by this child victim and the rape kit exam results discloses the obvious. Again, the balance of the file was provided . . . with some redactions of personally identifiable and sensitive information . . . .
It was CVCB's position that disclosure of these documents would constitute a clearly unwarranted invasion of the victim's personal privacy, and that the documents qualified for exclusion from public inspection under KRS 61.878(1)(a). In support, Mr. Mattingly relied on 02-ORD-36, in which this office affirmed a police department's denial of access to personally identifiable information relating to victims of sexual offenses that appeared in police incident reports,
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324, 328 (1992), in which the Kentucky Supreme Court affirmed a licensure board's denial of access to records containing information "touching upon the most intimate and personal features of private lives," and
Bloch v. Ribar, 156 F.3d 673 (6th Cir. 1998), in which the Sixth Circuit Court of Appeals determined that the plaintiff raised a cognizable privacy claim under 42 USC § 1983 based on a public official's disclosure of the details of her sexual assault. He noted that records relating to the subject claim "contain [] details of a sexual assault, . . . involve[] a minor child . . . and [her] attempted suicide. " Acknowledging that the public has a legitimate interest in ascertaining how CVCB renders its decisions, Mr. Mattingly nevertheless concluded that disclosure of the details of the sexual assault "constitute[s] an unwarranted invasion of privacy that . . . clearly outweigh [s] the public's right to know . . . ."
On appeal, Jon L. Fleischaker, an attorney representing The Courier-Journal, challenged CVCB's reliance on the cited legal authorities asserting that "none of those authorities gives an agency the kind of wide berth to omit public records that CVCB claims here." It was his position that "02-ORD-36 dealt with narrowly-defined portions of police incident reports where there had not yet been an arrest, indictment, or trial," and that the disputed records here are distinguishable because the victim's alleged assailant "was arrested, incarcerated, and indicted on charges of rape in the first degree," thus implicating "the public's constitutional right of access to the court." Mr. Fleischaker observed:
The information pertaining to [the] alleged rape of the victim is mandated to be accessible from the court records. It makes no sense that it conversely be statutorily shielded from CVCB records. To hold otherwise would reach an absurd conclusion where CVCB could redact the exact same information that the State Police and the courts must disclose in their entirety.
He questioned CVCB's reliance on Board of Examiners, above, noting that "[t]here is nothing 'intimate or personal' about rape - rape is a crime of violence," and arguing that "[t]he fact that a person is the victim of a violent crime, even if it is a sexual offense, does not render information pertaining to that crime private." Conversely, Mr. Fleischaker observed, "the public has a right to monitor CVCB in the performance of its public duties, including the allocation of public funds, [and] CVCB's rendering portions of its files secret extinguishes the public's ability to exercise its right to know. " Finally, Mr. Fleischaker objected to CVCB's reliance on Bloch v. Ribar, above, asserting that "the court specifically limited its decision to [the extreme set of] circumstances in which disclosure of the information concerning details of a rape serves no public purpose." It is the opinion of this office that with respect to information contained in the Supplementary Report to the Uniform Offense Report and the Report of the Forensic Laboratory Examination, the victim's privacy interests outweigh the public's right to monitor CVCB in the performance of its public function, to wit, "to hear and determine all matters relating to claims for compensation" and "to make available for public inspection all board decisions and opinions, administrative regulations, written statements of policy, and interpretations formulated, promulgated, or used by it in discharging its functions," 2 that interest having been effectually promoted by the already disclosed portions of the claim file.
We will not unnecessarily lengthen this decision with an analysis of existing case law construing KRS 61.878(1)(a), but instead incorporate by reference the analysis of the exception contained in 02-ORD-36 and employ a mode of decision based on the "comparative weighing of antagonistic interests" espoused by the Supreme Court in Board of Examiners. As noted, in that decision the Attorney General determined that a police department properly withheld the names and other information identifying the victims of sexual offenses from incident reports requested by open records applicants, reasoning:
[T]he 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." [Citations omitted.]
02-ORD-36, p. 10. We are unpersuaded by The Courier-Journal's argument that because rape is a crime of violence the details of which perforce become public in subsequent criminal proceedings, records relating to the offense do not contain information of a personal nature. In Bloch, the Sixth circuit emphasized that "the fact that the crime of rape occurred in this case implicates both a private and a public interest" and that a rape victim "has a fundamental right of privacy in preventing government officials from gratuitously and unnecessarily releasing the intimate details of the rape . . . ." Bloch at 685-86. Surely, that information is as personal as an individual's marital status, number of dependents, wage rate, social security number, home address and home telephone number, personal information in which the courts have recognized that an individual has at least some expectation of privacy.
Zink v. Commonwealth, Ky.App., 902 S.W.2d 825 (1994); see also,
Hines v. Commonwealth, Department of Treasury, Ky.App., 41 S.W.3d 872, 875 (2001), (recognizing that records reflecting unclaimed property "owners' possible incomes" were of an "intimate nature"). We believe that the disputed records relating to the victim of the sexual assault that allegedly occurred in 1994, and that are in CVCB's custody as a result of her mother's claim for reimbursement for medical expenses incurred, contain information of a personal nature "--indeed, of a very personal nature." Board of Examiners at 328.
The narrow question presented in this appeal is whether the public's interest in monitoring how CVCB discharges its duty to hear and determine all matters relating to claims for compensation outweighs the victim's privacy interest in avoiding the disclosure of the details of a traumatic incident that she "fervently wish[es] to remain confidential or only selectively released," Zink at 829, and thus warrants an invasion of her personal privacy. Because CVCB has, as noted, effectually promoted the public's right to know how it resolved this particular claim by disclosure of its entire file with the exception of the Supplementary Report to the Uniform Offense Report and the Report of the Forensic Laboratory Examination, we conclude that disclosure of the latter documents "would do little to further the citizens' right to know what [CVCB] is doing and would not in any real way subject agency action to public scrutiny. 3 Zink, at 829; accord Hines at 876.
In so holding, we are guided by the observations that "information is no less private simply because that information is available someplace." Zink at 828. "We deal not in total nondisclosure, but with an individual's interest in selective disclosure. " Id. "[T]he policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Board of Examiners at 328. Mr. Dunlop, and others, may access information relating to the victim's alleged rape that became public as a result of the aborted prosecution of the case, insofar as those details are a part of the open court record. Although it is by no means a foregone conclusion, Mr. Dunlop may also access information relating to the victim's alleged rape in KSP's investigative file. 4 Because CVCB readily released virtually all records regarding its resolution of the claim, we conclude that release of the remaining records, graphically documenting the details of the alleged crime and the victim's condition, would reveal little or nothing about CVCB's own conduct in executing its statutory functions. Here, "the circumstances of the given case," and in particular the singularly traumatic crime allegedly perpetrated against the victim and CVCB's disclosure of records demonstrating that it discharged its statutory function, "affect the balanc[ing]" of antagonistic interests, tipping that balance in favor of nondisclosure. Board of Examiners, at 328; Zink at 828. This conclusion is not, in our view, absurd, but instead reflects the simple reality that disclosure of the information concerning details of the rape serves no public purpose vis-a-vis the public's oversight of CVCB. Bloch at 685-686.
We find that CVCB's reliance on KRS 61.878(1)(a) as the basis for redacting the victim's name, date of birth, address, race, and the manner by which she attempted suicide, for which associated medical costs the claimant sought compensation, was justified for the same reasons that the details of the rape are protected. In this case, the attempt at suicide was the consequence of the rape and should be accorded the same protection under the privacy exception. The details of a suicide attempt with its attendant medical treatment are the type of information that has been found to be exempt from disclosure under the Open Records Act. Board of Examiners at 328. We find that, to the extent the information does not identify the victim, the name of the person who reported the offense, the location of the offense and arrest do not fall within the privacy exception and should have been disclosed to the newspaper. We affirm CVCB's redaction of the address, phone number, and date of birth of the alleged perpetrator of the offense, and the claimant's address, phone number, and the name of her bank. See Zink at 828. We also affirm CVCB's redaction of the victim's and the claimant's social security number as well as the "I.D. number" of the alleged perpetrator, on the basis of KRS 61.878(1)(a), as construed in Zink above.
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.
Jon L. FleischakerDinsmore & Shohl1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202
G. Mitchell Mattingly, AttorneyCrime Victims Compensation Board130 Brighton Park BoulevardFrankfort, KY 40601
Footnotes
Footnotes
1 The Courier-Journal acknowledges receipt of "various claim forms, correspondence, and disbursement documents . . . [as well as] medical bills, a letter from the Commonwealth's Attorney, and the Uniform Offense Report that was prepared by the Kentucky State Police."
2 KRS 346.040(3) and (7).
3 We note that the claim for compensation arose from medical expenses incurred as a result of the victim's attempted suicide following the alleged rape, and not as a result of the rape itself. The records withheld relate to the alleged rape and not to her attempted suicide.
4 It is not clear that the Kentucky State Police would be required to disclose the disputed records in their investigative file. KRS 61.878(1)(h) affords continuing protection to records "exempted by other provisions of KRS 61.870 to 61.884," and KRS 17.150(2)(b) affords continuing protection to "[i]nformation of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest[.]"