05-ORD-273 | KOGC

Opinion

Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

At issue in this appeal is whether the Radcliff Police Department violated the Kentucky Open Records Act in partially denying the request of Vincent Scott for copies of his arrest report and "ANY and ALL documents" relating to him or Tina Carter, with whom Mr. Scott was arrested on May 30, 2005. In failing to explain how the cited exception applies to the records withheld, the RPD violated KRS 61.880(1). Because the RPD has provided Mr. Scott with copies of those responsive records concerning him, any issues related to those records are now moot. Having failed to articulate a heightened privacy interest that is superior to the significant public interest in disclosure of records of the type requested, the RPD erred in relying upon KRS 61.878(1)(a) as the basis for denying the remainder of Mr. Scott's request.

By letter November 10, 2005, Mr. Scott initiated this appeal from the alleged failure of the RPD to respond upon receipt of his request. Upon receiving notification of Mr. Scott's appeal from this office, Donald Bloodworth, Chief of Police, responded on behalf of the RPD. In relevant part, Chief Bloodworth observes:

Mr. Scott was mailed all information requested concerning himself in accordance with the Freedom of Information Act. We did not supply any information on Ms. Tina Carter based on The Privacy Act of 1974. [] KRS 61.878(1)(a) states that public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy are exempted from inspection except on order of the court. []

Included with Chief Bloodworth's response are copies of the records at issue for in camera inspection by this office. 1 Because the position of the RPD is not supported by governing precedent, the RPD must provide Mr. Scott with copies of the records concerning Ms. Carter upon receiving advance payment of the prescribed fee, including postage, per KRS 61.874(1); the RPD may redact identifying information such as social security numbers and home phone numbers.

To begin, the Privacy Act has no application in the context of an appeal filed pursuant to the Open Records Act. See OAG 83-256 ("The federal statute deals with federal records in the hands of federal agencies and employees and no state official has the power to commit the state to treat that statute as though it were a state statute[;] the statute makes no pretense of controlling state records, either to make them open or to make them closed."); see also, OAG 80-519 (holding that both the Freedom of Information Act and the Privacy Act have "no force as to state records, only the records of federal agencies") ; OAG 91-56; 96-ORD-244; 98-ORD-89; 01-ORD-59. Simply put:

[The Freedom of Information Act] has no force as to state records, only the records of a federal agency. By invoking KRS 61.878(1)[(k)] and 5 U.S.C.A. § 552(b) [or 5 U.S.C. § 552(a) and 18 U.S.C. § 1905], [a public agency] attempt[s] to engraft onto the state act the federal exemptions. While many of the exemptions contained in the state and federal acts are similar in purpose and effect, neither act is intended to supplement the other.

OAG 91-56, p. 3; 96-ORD-244. Accordingly, the RPD's reliance upon the Privacy Act was misplaced. See 04-ORD-083 (holding that FOIA "protections have generally been deemed inapplicable to state records"); 05-ORD-094.

On appeal, the RPD advises this office that copies of any existing records concerning Mr. Scott were mailed to him as requested. 40 KAR 1:030 Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that when access to public records is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " OAG 91-140; 04-ORD-046. Absent objective evidence to the contrary, this office assumes that Mr. Scott has received copies of any existing records which are responsive to the specified portion of his request. That being the case, any related issues are now moot; the Attorney General therefore declines to issue a decision as to those records.

As a public agency, the RPD is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or his purpose in requesting access to the records generally speaking. 2 More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests submitted pursuant to the Open Records Act. In relevant part, KRS 61.880(1) provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).

In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:

The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.

Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208; 04-ORD-163; 04-ORD-106.

Noticeably absent from the supplemental response of the RPD, which apparently mirrors the initial response, is the requisite brief explanation of how the cited exception(s) applies. A public agency such as the RPD must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As repeatedly recognized by the Attorney General:

Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .

00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2 (emphasis added). From a procedural standpoint, the RPD violated the Open Records Act in failing to comply with the mandatory terms of this provision; bearing in mind that public agencies such as the RPD have the burden of proof in denying requests pursuant to KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office concludes that the response of the RPD was deficient. Edmondson v. Alig, supra, at 858; See 97-ORD-170. In responding to future requests, the RPD should be guided by the longstanding principle 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." 93-ORD-125, p. 5; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187. 3

Turning to the substantive issue presented, prior decisions of this office establish that records of the type at issue do not generally fall within the parameters of KRS 61.878(1)(a), although certain information may be redacted assuming the public agency articulates the basis for denying access in terms of the statute. Citing KRS 61.871, the Kentucky Supreme Court has observed that the "unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure 'may cause inconvenience or embarrassment to public officials or to others.'" Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994). Despite this "manifest intention to enact a disclosure statute," the General Assembly has mandated that certain records are not subject to public inspection. Among those records excluded from application of the Open Records Act absent a court order are public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a) .

Based upon the exclusionary language contained in KRS 61.878(1):

[W]e must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to statutory rights of personal privacy and the need for governmental confidentiality . . . suggest[ing] an absence of legislative intent to create unrestricted access to records.

Beckham, supra, at 578; 03-ORD-084, p. 4. When denying access to public records pursuant to this exception, as with any other, the burden of proof rests with the agency per KRS 61.880(2)(c). Because the RPD has not elaborated as to how KRS 61.878(1)(a) applies, the RPD has necessarily failed to meet this burden.

In Kentucky Board of Examiners of Psychologists v. The Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324 (1992), the Kentucky Supreme Court established the standard by which this office must analyze the propriety of a public agency's reliance upon KRS 61.878(1)(a) in denying access to public records. 4 Recognizing that the Act "exhibits a general bias favoring disclosure, " the Court formulated a balancing test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. Logic dictates that the circumstances of a particular case will affect the balance. Id. at 328. As observed by the Court, KRS 61.878(1)(a) 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." Id. Resolving the question of whether a public agency properly relied upon KRS 61.878(1)(a) in denying access to public records necessarily turns on whether the offense to personal privacy that would result from disclosure of the information contained in the records outweighs the benefit to the public, and is an "intrinsically situational" determination that can only be made within a "specific context." Id. As noted, the "clearly unwarranted" standard "tips the scales in favor disclosure. " 03-ORD-084, p. 4.

To reiterate, the public's "right to know" under the Act is premised upon the right of the public to expect its agencies to properly execute their statutory functions. Kentucky Board of Examiners, supra, at 328. Generally speaking, inspection of public 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." Id. In Zink v. Commonwealth Kentucky, Department of Workers' Claims, Ky. App., 902 S.W.2d 825 (1994), the Court of Appeals refined this standard, elaborating upon its "mode of decision" as follows:

[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. [ Kentucky Board of Examiners at 328]. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.

Zink, supra, at 828. 5

Having recognized a cognizable privacy interest in the requested forms since much of the information contained therein touched upon "the personal features of private lives," the Court turned to the issue of whether an invasion of privacy was warranted by weighing the public interest in disclosure against the privacy interests involved. Id. Of particular relevance here, the Court observed:

[O]ur analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access 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 princip[al] purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.

(Emphasis added). Zink, supra, at 828-829.

Guided by the foregoing principles, this office must determine whether the records at issue contain information of a personal nature and, if so, whether disclosure of the records to Mr. Scott would serve the principal purpose of the Open Records Act. If not, the significant interest of the public is necessarily outweighed by the privacy interests implicated. In making this determination, the Attorney General is guided by the general principle that the Open Records Act "exhibits a general bias favoring disclosure, " Kentucky Board of Examiners, supra, at 327, and the legislative pronouncement that "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed." KRS 61.871.

Early on, this office recognized that records of law enforcement agencies are subject to inspection unless specifically removed from application of the Act by statute. OAG 76-478. As observed by the Attorney General, police departments "do not have the authority to act privately, confidentially or secretly unless expressly authorized in particular kinds of cases." Id., p. 2. Shortly thereafter, the Attorney General reaffirmed this position, noting that the "sovereign is a party to police actions and therefore the public has a right to inspect the records of . . . [police] actions." OAG 76-511, p. 4. Each of these decisions was premised upon the following principle:

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, pp. 1-2. On this basis, the Attorney General determined in OAG 77-102, and subsequent decisions, 6 that police incident reports, as opposed to investigative files, are not generally exempt from public inspection. 7 Nevertheless, this office has also recognized that portions of such records may be redacted by a law enforcement agency if the agency can articulate a basis for partially denying access in terms of one or more of the exceptions to the Open Records Act codified at KRS 61.878(1). 8

More recently, this office found uniform offense reports to be the "functional equivalent" of incident reports like those at issue in the cited decisions, holding that a blanket redaction policy relative to the second page of those reports was contrary to this well-established line of authority. 05-ORD-003, p. 5. In so holding, this office echoed a 2003 opinion by the Kentucky Court of Appeals, declaring that "police incident reports are matters of public interest and are public records. 93-ORD-42, citing OAG 76-443. As a result, the public should be allowed to scrutinize the police to ensure they are complying with their statutory duties." Cape Publications v. City of Louisville, Ky. App., 147 S.W.3d 731, 733 (2003). 9 Having first rejected the Winchester Police Department's reliance upon KRS 61.878(1)(h), the Attorney General then concluded that KRS 61.878(1)(a) was equally inapplicable as to page two of the reports as well as any categories of information on the first page, in accordance with the reasoning upon which 04-ORD-188 is premised. 05-ORD-003, p. 9.

Of particular relevance here, this office expressly rejected an attempt by the University of Kentucky Police Department to withhold categories of information from law enforcement records pursuant to KRS 61.878(1)(a), observing that "a law enforcement agency violates the Open Records Act by engaging in the practice of withholding victims' names, addresses, and other personal identifiers from incident reports, absent a particularized showing of a heightened privacy interest outweighing the public's interest in disclosure. " Id., p. 8. Although there was no immediate victim in this case, the analysis at pp. 8-12 of 04-ORD-188, a copy of which is attached hereto and incorporated by reference, applies with equal force on the facts presented in our view. As recognized by both the Court and this office, "when an individual enters on the public way, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent." Zink, supra, at 828, citing OAG 76-511. In other words, the significant interest of the public in disclosure of the records requested is necessarily superior to the unarticulated privacy interest of Ms. Carter, which is de minimis at best. "Absent a particularized showing [of a heightened privacy interest] , the public has a legitimate interest in [law enforcement reports] and disclosure of the information they contain transgresses only minimally upon the privacy of the individuals who are the subjects of those reports." 04-ORD-188, p. 10.

Because either party may appeal this decision by initiating action in the appropriate circuit court, pursuant to KRS 61.880(5) and KRS 61.882, this office is returning the records at issue to the RPD with the understanding that the RPD will forward copies to Mr. Scott if it chooses not to exercise this right. 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.

Vincent Scott, # 188194Eastern Kentucky Correctional Complex200 Road to JusticeWest Liberty, KY 41472

Sgt. Branson McLeddRadcliff Police Department220 Freedoms WayRadcliff, KY 40160

Col. Donald BloodworthChief of PoliceCity of Radcliff220 Freedoms WayRadcliff, KY 40160

R. Terry BennettRadcliff City AttorneySkeeters, Bennett, & WilsonP.O. Box 610Radcliff, KY 40159-0610

Footnotes

Footnotes

1 To facilitate our review of appeals filed pursuant to theOpen Records Act, KRS 61.880(2)(c) and 40 KAR 1:030(3) vest this office with the authority to inspect the records at issue. In relevant part, KRS 61.880(2)(c) provides:

The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.

In a similar vein, 40 KAR 1:030(3) provides:

KRS 61.880 authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered.

In 96-ORD-206, the Attorney General "recognizes that he is bound to observe the confidentiality of the records, and does not share [the agency's] apparent view that disclosure to this office pursuant to KRS 61.880(2)(c) constitutes waiver as to any legitimate privilege [or exemption] asserted." Id., p. 5. Here, this office had not invoked KRS 61.880(2)(c); a public agency arguably waives any arguments by disclosing the record(s) prior to the Attorney General invoking KRS 61.880(2)(c), although this office does not so interpret the disclosure in this instance.