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 Lexington-Fayette Urban County Government Division of Police violated the Open Records Act in partially denying Lexington Herald-Leader reporter Michelle Ku's April 11, 2005, request for "[a]ll paperwork regarding the complaint filed by Marcus A. Powell on March 28, 2005, about a fourth degree assault at 249 East Main Street, including . . . the full police report, the criminal complaint in its entirety, and any investigative notes." For the reasons that follow, we affirm LFUCG's partial denial of Ms. Ku's request.
By letter dated April 11, 2005, Karen H. Steed, Assistant Records Custodian for the LFUCG Division of Police, advised Ms. Ku:
With respect to complaint and offense reports that are "cleared by exception" and no suspect was arrested, all information relating to the suspect including the suspect's name have been redacted from the reports as the suspect still maintains an expectation of privacy. All information relating to the suspect is exempt from public inspection pursuant to KRS 61.878(1)(a) which exempts: "[p]ublic records containing information of personal nature [sic] where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
A redacted copy of the responsive reports was thereafter released to Ms. Ku. All identifying information had been deleted from the report with the exception of the single, apparently inadvertent, inclusion of a reference to a "Terroristic Threatening disorder between Vice Mayor Scanlon and car salesman" that appeared in the investigating officer's memorandum.
Sometime after LFUCG issued this response, Vice Mayor Michael Scanlon, who, as indicated, was the subject of the report, publicly acknowledged his involvement in the incident. LFUCG subsequently released a virtually unredacted copy of the responsive report to Ms. Ku, masking only Vice Mayor Scanlon's driver's license and social security numbers. It was LFUCG's position that by acknowledging his involvement in the incident, the Vice Mayor "waived a portion of his privacy exemption regarding his identity in the incident," and that "[t]his public waiver by the Vice Mayor, who is the owner of the privacy exemption to be waived, serves to moot the issue [of his identity] under [40 KAR 1:030 Section 6]." Upon inquiry, the Vice Mayor agreed to the release of his address, race, sex, date of birth, age, height, weight, description of hair, and description of eyes, thus mooting "this portion of The Herald Leader's appeal," but "asserted his privacy exemption regarding his driver's license number and social security number . . . ." It was LFUCG's position that:
The privacy exemption is not a government exemption to waive but is an individual exemption. Rather than have the ability to waive the privacy exemption, the government has an affirmative duty to assert the exemption for the individual.
While we disagree, in general, with this legally unsupportable proposition, which is fundamentally at odds with the basic premise of the Act, we find no error in LFUCG's decision to redact Vice Mayor Scanlon's driver's license and social security number.
In
Zink v. Commonwealth of Kentucky, Department of Workers' Claims, Ky. App., 902 S.W.2d 825, 829 (1994), Kentucky's courts characterized a social security number as "no less than the keys to an information kingdom as it relates to any given individual," affording "[a]ccess to a wealth of data compiled by both government agencies and private enterprises such as credit bureaus . . . ." Because disclosure of social security numbers "reveals little or nothing about an agency's . . . conduct," the Zink court held that the relevant public interest supporting disclosure . . . [was] nominal at best," id., and affirmed the Department's denial of that portion of the disputed record containing the numbers, concluding that the privacy interests implicated "substantially outweighs the negligible Open Records Act related public interest in disclosure. " Id. This holding mirrors a line of opinions issued by this office from 1979 to the present. See, e.g., OAG 79-275; OAG 87-37; OAG 90-60; OAG 91-48; 94-ORD-91; 97-ORD-76; 03-ORD-034. Here, too, we find that the public interest supporting disclosure of Vice Mayor Scanlon's social security number is nominal, insofar as disclosure of that item of information "would do little to further the citizen's right to know what their government is doing and would not in any real way subject agency action to public scrutiny," Zink at 829. We therefore affirm LFUCG's disposition of this portion of Ms. Ku's request.
By the same token, we find no error in LFUCG's decision to redact Vice Mayor Scanlon's driver's license number from the disputed report. In 00-ORD-90, this office affirmed LFUCG's denial of a request for records that included, inter alia, driver's license numbers, on the basis of KRS 61.878(1)(a), determining that "the privacy rights outweigh the public's interest in disclosure. " 00-ORD-90, p. 3. The sensitive nature of driver's license numbers prompted Congress to enact the Driver's Privacy Act, 18 U.S.C. § 2721, restricting disclosure of personal information about any individual in motor vehicle records, and defining personal information as "the individual's photograph, social security number, drivers identification number, name, address, . . . telephone number, and medical or disability information." 18 U.S.C. § 2725 (3) (emphasis added). Although the Act is inapplicable to law enforcement agencies, including the LFUCG Division of Police, 1 and the police reports they generate, the federal act "evinces a strong congressional commitment to preventing misuse of such information . . . ." 02-ORD-19, p. 5. We therefore attach substantial weight to the privacy interests implicated by disclosure of driver's license numbers, and correspondingly little weight to the Open Records Act related public interest that would be advanced by disclosure. Accordingly, we conclude that LFUCG's denial of this portion of Ms. Ku's request was proper under KRS 61.878(1)(a).
Nevertheless, we would be remiss in failing to express our grave concerns about the argument advanced in support of the agency's decision to release the otherwise unredacted report. Taken to its logical conclusion, this argument would require a public agency to withhold nonexempt public records identifying an individual any time that individual elected "to assert his privacy exemption. " To suggest that a public record identifying an individual can only be disclosed if the individual waives any arguable privacy interest in the record flies in the face of some thirteen years of interpretation of KRS 61.878(1)(a).
Recognizing that the Open Records Act "exhibits a general bias favoring disclosure, " in 1992, the Kentucky Supreme Court declared that in assessing the propriety of an agency's invocation of KRS 61.878(1)(a) "there is but one available mode of decision, and that is by a comparative weighing of the antagonistic interests."
Kentucky Board of Examiners v. Courier Journal and Louisville Times, Ky., 826 S.W.2d 324, 327, 328 (1992). The Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory functions and individual privacy interests, noting that "[t]he statute contemplates a case-specific approach" and that "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id., at 328. Only if the individual's privacy interests are of sufficient weight to overcome the public's interest in insuring that the subject agency is "proper[ly] . . . execut[ing] [its] statutory functions," id., can that individual be said to possess a substantiated and protectable privacy interest.
It is then incumbent on the agency to invoke KRS 61.878(1)(a) to withhold the record on behalf of the individual, or to notify the individual prior to discretionary release of the record so that the individual may be heard on his exclusion claims in circuit court.
Beckham v. Board of Education, Ky., 873 S.W.2d 575 (1994);
Lexington-Fayette Urban County Government v. Lexington Herald-Leader, Ky., 941 S.W.2d 469, 1997). It is not acceptable practice, in our view, to defer to the individual's preference that a record not be disclosed in order to avoid potential reputational damage or embarrassment unless disclosure of that record implicates a substantiated and protectable privacy interest under the "mode of decision" established by the Supreme Court in Board of Examiners, above.
With specific reference to the type of record at issue in this appeal, Kentucky's courts have recognized that "police incident reports are matters of public interest and . . . the public should be allowed to scrutinize the police to ensure they are complying with these statutory duties."
Cape Publications v. City of Louisville, Ky. App., 147 S.W.3d 731, 733 (2003). While the courts have further recognized that "the public's knowledge of police compliance should not come at the expense of" individuals for whom a substantiated and protectable privacy interest may properly be asserted, id., we reject the notion that the privacy interest to be protected may be postulated solely on the individual's preference as opposed to the situational analysis mandated by the courts.
Where, as here, the subject of the report is a public official, that official forfeits, at least to some extent, his privacy interest, and the public's interest "in seeing that alleged criminal activity is thoroughly investigated and vigorously prosecuted without favoritism or bias, " OAG 91-35, p. 6, is correspondingly heightened, regardless of, or perhaps especially where, the report is "cleared by exception." Accord,
Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001). This view is entirely consistent with the position the Attorney General took in OAG 91-35, firmly establishing that this office did "not state a per se rule that in every case where individuals have been investigated but not charged with a crime, that information is properly exempt from disclosure under . . . KRS 61.878(1)(a) or 17.150(2)(b)," and restricting the holding in the opinion to "the facts presented." OAG 91-35, p. 6, 7. We refer the parties to 04-ORD-188 and 05-ORD-003, copies of which are attached hereto, for a comprehensive examination of this office's position relative to the invocation of KRS 61.878(1)(a) in the context of police 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 proceeding.
Escum L. Moore, IIISavage, Elliott, Houlihan, Moore, Mullins & Erdmann, LLPPNC Bank Plaza, Suite 810200 West Vince StreetLexington, KY 40507
Anthany BeattyLexington-Fayette Urban County GovernmentDivision of Police150 East Main StreetLexington, KY 40507
Karen H. SteedAssistant Records CustodianLexington-Fayette Urban County GovernmentDivision of Police150 East Main StreetLexington, KY 40507
Michael R. Sanner, Corporate CounselLexington-Fayette Urban County GovernmentDepartment of Law200 East Main StreetLexington, KY 40507
Footnotes
Footnotes
1 See 02-ORD-19.