Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Justice and Public Safety Cabinet properly relied on KRS 61.878(1)(a) in partially denying Blaine J. Edmonds' January 20, 2005, request for "any and all files, records and any other information, including but not limited to any/all photographs and reports, that [the State Medical Examiner's Office] has concerning the death of Mr. James Livingston in August, 1992, . . . autopsy performed by Mr. John C. Hunsaker." 1 For the reasons that follow and upon the authorities cited, we affirm the Cabinet's disposition of Mr. Edmonds' request and in particular the denial of that portion of his request relating to autopsy photographs.
In his letter of appeal, Mr. Edmonds explains that the Kentucky Innocence Project of the Department of Public Advocacy, with which he is affiliated, "seeks these autopsy photographs as part of the on-going investigation . . . on behalf of [its] client, Mr. Robert Sneed," who was convicted of Mr. Livingston's murder on March 24, 1994, and sentenced to life confinement on April 22, 1994. It is the Project's position that "Mr. Sneed's innocence depends entirely upon establishing the time of death of Mr. Livingston, through forensic science, [and that] these photographs are of paramount importance." Challenging the Cabinet's reliance on KRS 61.878(1)(a), Mr. Edmonds asserts that the "public interest [in] not keeping innocent persons incarcerated" outweighs "the interests of Mr. Livingston's living relatives," and "any invasion of the privacy of . . . [his] relatives will be kept to an absolute minimum" inasmuch as the photographs will be used exclusively for the purpose of "assisting [the Project's] forensic scientists in establishing a time of death."
In supplemental correspondence directed to this office following commencement of Mr. Edmonds' appeal, Assistant General Counsel Daniel F. Egbers amplified on the Cabinet's position. The Cabinet heavily relied on
National Archives and Records Administration v. Favish, 541 U.S. 157, 124 S. Ct. 1570, 158 L.Ed 2d 319 (2004), in which the United States Supreme Court construed 5 U.S.C. § 552(b)(7)(C), recognizing that the surviving family members' right to personal privacy with respect to a close relative's death scene photographs is generally superior to the public's interest in disclosure of those photographs. The Cabinet acknowledged that a requester is not ordinarily required to explain his purpose in seeking information, but noted that in Favish the Supreme Court held that "where a privacy exception is involved, the requester must show that the public interest is a significant one '. . . and that the information is likely to advance that interest.'" Favish at 158 (emphasis added). Continuing, the Cabinet observed:
Mr. Edmonds made no effort to carry the burden established by Favish . . .[, and] cannot argue for the first time on appeal that the Cabinet erred in its response. Moreover, while we concede that the public interest in not keeping innocent persons incarcerated is a legitimate public interest, Mr. Edmonds on appeal offers no more than a bare assertion that the autopsy photographs might be probative of guilt or innocence in a case where that issue has already been adjudicated. In short, in the absence of any competent medical opinion as to whether the photos "are likely" to be even remotely helpful, we are asked to ignore the privacy interests of the Livingston family against having the autopsy photographs of their loved one exposed . . . .
On this basis, the Cabinet urged the Attorney General to affirm the denial of Mr. Edmonds' request for autopsy photographs. Having reviewed the record on appeal, and applying the applicable state and federal authorities to the facts presented, we affirm. 2
In a line of open records opinions dating back to 1982, the Attorney General has recognized that an autopsy report can be withheld on the basis of KRS 61.878(1)(h) while criminal prosecution is contemplated or in progress. OAG 82-458, OAG 83-223; OAG 91-6; 94-ORD-84; 97-ORD-81; 01-ORD-31. KRS 61.878(1)(h) authorizes nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. 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; . . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
Only after criminal prosecution is concluded must the autopsy report be produced for public inspection. Moreover, KRS 17.150(2), incorporated into the Open Records Law by operation of KRS 61.878(1)(l), 3 has also been deemed to authorize nondisclosure of an autopsy report while criminal prosecution is pending. That provision provides that "[i]ntelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made." 97-ORD-81, 01-ORD-31. It is undisputed that, consistent with this line of authority, the Cabinet promptly released copies of the written autopsy report to Mr. Edmonds, the prosecution in this case having been concluded.
A review of the cited decisions confirms that the Attorney General has not had occasion to specifically address access to autopsy photographs or extend protection to such photographs under KRS 61.878(1)(a) or under any other exception to the Open Records Act. However, in 00-ORD-162 this office affirmed the Barren County Sheriff's Department's reliance on KRS 61.878(1)(a) in denying, inter alia, death scene photographs taken in the victim's residence in deference to the privacy interests of the victim's surviving family members. Citing
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 recordings of moments leading up to explosion),
State v. Rolling, 1994 WL 722 891 (Fla. Cir. Ct.) (recognizing a right of privacy for relatives of murder victims in photographs of victims' bodies), and OAG 90-56 (recognizing privacy rights of surviving victims of twelve hour hostage siege that culminated in murder/ suicide in tape recording of hostage negotiation), we held that the public's interest in insuring that the sheriff properly executed his statutory duty was satisfied by disclosure of the bulk of his investigative file, but that the death scene photos, were "particularly sensitive records warrant[ing] protection under KRS 61.878(1)(a)." Here, as in 00-ORD-162, we find that the public's interest in insuring that the Medical Examiner properly discharged his statutory function is satisfied by disclosure of the written autopsy report, and that disclosure of the autopsy photographs constitutes a clearly unwarranted invasion of the personal privacy of the victim's surviving family members.
Our analysis proceeds from the courts' interpretation of the cited exception, KRS 61.878(1)(a), authorizing 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:
[G]iven 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 a later 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:"
[O]ur 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 opined:
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, "[t]he 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.
Neither Board of Examiners nor Zink dealt with autopsy photographs. Since these opinions were published, however, the issue of access to autopsy photographs has taken center stage, generating widespread public debate. Following the 2001 death of NASCAR driver Dale Earnhardt, and subsequent attempts to gain access to his autopsy photographs, several states, including Kentucky, considered legislation aimed at restricting access to such photos. 4 Although these Kentucky legislative initiatives failed, they focused public attention on this difficult issue.
In 2004, the United States Supreme Court undertook an examination of the issue in a case arising from the apparent suicide of Presidential Deputy Counsel Vincent Foster, Jr. and an attempt to access death scene photographs under the Freedom of Information Act, 5 U.S.C. § 552. National Archives and Records Administration v. Favish, above. Although the exemption upon which the federal agencies relied in denying access, 5 U.S.C. § 552(b)(7)(C), authorizing nondisclosure of "records or information compiled for law enforcement purposes" if their production "could reasonably be expected to constitute an unwarranted invasion of personal privacy, " does not track the language of the exemption to the Open Records Act upon which the Justice Cabinet relies, KRS 61.878(1)(a), we find highly persuasive, and hereby adopt, the Court's holding that surviving family members have a cognizable privacy right in photographs depicting a close relative's death. A copy of National Archives and Records Administration v. Favish, above, is attached hereto and incorporated by reference. Accord,
Katz v. National Archives and Records Admin., 862 F.Supp. 476, 485 (D.D.C. 1994) (affirming denial of access to autopsy x-rays and photographs of President Kennedy based on the Kennedy family's "clear privacy interest in preventing . . . disclosure . . ."). Although, unlike in Favish, the record on appeal is devoid of proof that Mr. Livingston's surviving family members have requested that his autopsy photographs not be disclosed, we find ample support for the proposition that a right of privacy may be asserted on their behalf. 5 The position we take today comports with our decision in 00-ORD-162.
Having so concluded, and applying the weighing of competing interests analysis set forth in Board of Examiners, above, and Zink, above, "we proceed to determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved." Zink at 828. As noted, "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 . . . [by] reveal[ing] whether the public servants are indeed serving the public . . . [and advancing] the citizens' right to be informed as to what their government is doing." Zink at 838, 829. While "the public interest [in] not keeping innocent persons incarcerated" is a compelling one, vindicating the innocent "cannot be said to further the principal purpose of the Open Records Act. " Id. We focus, instead, on the extent to which disclosure of the autopsy photographs will enable the public to insure that the State Medical Examiner properly executed his statutory function in performing the Livingston autopsy. Such a determination can, in general, be made from the already disclosed written autopsy reports. Only if evidence beyond a bare suspicion is adduced that would warrant a belief by a reasonable person that the Medical Examiner acted negligently or otherwise improperly in the performance of his duties will the public's interest in disclosure be characterized as superior to the privacy interests implicated . The record on appeal is devoid of any such evidence. We find that the public interest was effectively promoted by release of the written autopsy reports and must, therefore, yield to Mr. Livingston's surviving family members' privacy interests in the nondisclosure of their relative's autopsy photographs. Fundamental to our decision is the recognition that "[t]here is no mechanism under [the Open Records Act] for a protective order allowing only the requester to see whether the [records] bear out his theory, or for proscribing its general dissemination." Favish at 174. Bearing in mind that "the Legislature clearly intended to grant any member of the public as much right to access to information as the next," Zink, at 828, and that "other parties such as . . . the merely curious, would have the same access under the Open Records Act as" the Kentucky Innocence Project, Zink at 829, we find that the Justice and Public Safety Cabinet properly relied on KRS 61.878(1)(a) in denying that portion of Mr. Edmonds' request relating to autopsy photographs.
We do not, in so holding, affirm a blanket policy of nondisclosure of autopsy photographs, but remind the Cabinet that any analysis under KRS 61.878(1)(c) "is intrinsically situational, and can only be determined within a specific context." Board of Examiners at 328. Evidence beyond a bare suspicion that the Medical Examiner acted negligently or improperly in the performance of his public duties would almost certainly warrant a contrary holding, as would proof that the subject of the autopsy photographs had no living close relatives, that his or her relatives had consented to disclosure of the photographs, or that his or her relatives had otherwise evinced a waiver of their privacy interests. Our holding in this appeal is confined to the facts presented. Based on those facts, we find no error in the Cabinet's disposition of Mr. Edmonds' 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 proceeding.
Blaine J. Edmonds, IIIDepartment of Public AdvocacyP.O. Box 555Eddyville, KY 42038
Luke MorganGeneral CounselJustice and Public Safety CabinetBush Building, Second Floor403 Wapping StreetFrankfort, KY 40601-2638
John R. TarterDeputy General CounselJustice and Public Safety Cabinet403 Wapping StreetFrankfort, KY 40601
Daniel F. EgbersAssistant General CounselJustice and Public Safety CabinetBush Building, Second Floor403 Wapping StreetFrankfort, KY 40601-2638
Footnotes
Footnotes
1 The Cabinet released the written autopsy reports to Mr. Edmonds.
2 Concerns have been expressed in the past about the propriety of this office reviewing open records appeals involving the Department of Public Advocacy. As in 99-ORD-36, OAG 92-10, OAG 91-35, and OAG 78-639, we remind DPA that because there is no statutory mechanism authorizing an "independent review" under these circumstances, the Attorney General may not delegate his duty. Further, we remind DPA that, pursuant to KRS 61.882(2), a party may bypass this office and appeal the denial of an open records request directly to circuit court.
3 KRS 61.878(1)(l) requires public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
4 See, 2002 Regular Session HB 77; 2002 Regular Session HB 582; 2004 Regular Session HB 111.
5 Clearly, the Justice Cabinet's case would be stronger if the Livingstons had requested that the autopsy photographs not be disclosed. Upon inquiry pursuant to KRS 61.880(2)(c), this office was advised by the Cabinet that no such request had been made.