Request By:
Escum L. Moore, III
Savage, Elliott, Houlihan, Moore, Mullins & Erdmann, LLP
PNC Bank Plaza, Suite 810
200 West Vine Street
Lexington, KY 40507Bea J. Barendregt
Records Custodian
Lexington-Fayette Urban County Government
Division of Police
150 East Main Street
Lexington, KY 40507Michael Sanner, Commissioner
Department of Law
Lexington Fayette Urban County Government
200 East Main Street
Lexington, KY 40507
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 properly relied on KRS 61.878(1)(a) in partially denying Lexington Herald-Leader reporter Delano Massey's May 4, 2005, request for "[t]he case file for a rape allegation at the University of Kentucky Wildcat Lodge . . . on April 20," and reporter Valerie Spears' November 11, 2005, request for "any additions made to the Wildcat Lodge alleged rape investigation file since May 4 and/or the Herald-Leader's last request on file." 1 For the reasons that follow, we find that the Division's reliance on KRS 61.878(1)(a) to withhold identifying information relating to the suspect in this case was misplaced.
In its June 2, 2005, response to The Herald-Leader's May 4 request, 2 the Division released a redacted copy of the case file, stating, in part:
As to case number 2005-70104, this case is cleared by exception and is available to you, subject to the following:
. . .
2. Pursuant to KRS 61.878(1)(a) and OAG 91-35, when no suspect is arrested or charged with a crime, the suspect has an expectation of privacy. Pursuant to the above referenced statue [sic] and Attorney General's Opinion, all information and documents identifying the suspect will be redacted and are exempt from disclosure.
The Division's November 29 response to The Herald-Leader's November 11 request mirrored its partial denial of the earlier request. On February 3, 2006, The Herald-Leader initiated this appeal, asserting that the Division's "reliance on KRS 61.878(1)(a) to support redaction of suspect identities from all case files cleared by exception where a suspect was not arrested is erroneous and improper pursuant to the opinions of the Kentucky Attorney General and clear Kentucky common law."
In supplemental correspondence directed to this office following commencement of The Herald-Leader's appeal, the Division explained that some 940 records from the investigative file were released to the public after the Division concluded its investigation and cleared the case by exception, and that both the Fayette County and Commonwealth's Attorneys reviewed the case and refused to prosecute. Noting that in OAG 91-35, this office opined that "release of the name of a person investigated but not charged with criminal activity represents a severe intrusion on the privacy interests of the individual in question and should yield only where exceptional interests mitigate in favor of disclosure, " the Division asserted that "[n]othing can be more intrusive than to be linked to a criminal allegation where three independent and distinct government agencies have found that no crime was committed." The Division applied the analysis in OAG 91-35, requiring disclosure of the identity of a suspect investigated but not charged with a crime "only when a substantial public interest will be advanced by disclosure and the impact on the public is significant" to The Herald-Leader's requests, and concluded that "release of [this] suspect's name does not advance a substantial public interest nor is the public impact significant." Respectfully, we disagree.
To begin, the standard by which we assess the propriety of an agency's invocation of KRS 61.878(1)(a) is not found in OAG 91-35, but in
Kentucky Board of Examiners of Psychologists v. Courier Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992) and its progeny. KRS 61.878(1)(a) excludes from the mandatory disclosure provisions of the Open Records Act "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " From this exclusion, "we 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. "
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 578 (1994). The public's right to know, the Kentucky Supreme Court observed in Board of Examiners , "is premised upon the public's right to expect its agencies properly to execute their statutory functions." "Inspection of records," the court reasoned, "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." Board of Examiners , above. Echoing this view, in
Zink v. Commonwealth of Kentucky, Ky. App., 902 S.W.2d 825, 828 (1994), the Court of Appeals confirmed that "we . . . determine whether . . . an invasion of privacy is warranted by weighing the public interest in disclosure against the privacy interests involved." Continuing, the court observed:
Our analysis does not turn on the purposes for which the quest 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 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 principal 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.
Zink , above at 828, 829. If then the disputed records contain information of a personal nature, we must determine if the privacy interest in nondisclosure outweighs the public's interest in what the subject agency is doing and how it conducts its affairs. In so doing, we are guided by the knowledge that the Open Records Act "exhibits a general bias favoring disclosure, " Board of Examiners , above at 327, and "the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed." KRS 61.871. Ultimately, "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.
In 05-ORD-224, an unappealed decision of this office by which these parties are legally bound, the Attorney General stated that where the individual who is identified as the suspect in a criminal complaint and offense report is a public figure, that individual "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." 05-ORD-224, p. 5 citing
Palmer v. Driggers, Ky. App., 60 S.W.3d 591 (2001). 3 "This view," we further noted in 05-ORD-224, "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) . . . ' and restricting the holding in that opinion to 'the facts presented.'" Id.
The facts giving rise to this appeal are closely akin to the facts giving rise to 05-ORD-224. Here, as in the cited decision, the suspect is a public figure who, by virtue of this status, forfeits, to some extent, his privacy interest. The public's interest "in seeing that alleged criminal activity is thoroughly investigated and vigorously prosecuted without favoritism or bias, " is correspondingly heightened not only because the suspect is a public figure but because the record on appeal demonstrates that the investigation, and the County and Commonwealth's Attorneys' consequent decision not to prosecute, were challenged. Questions relating to the thoroughness of the investigation and the impartiality of the prosecution can best be resolved through unimpeded access to the underlying records. Disclosure of the suspect's identity will, in fact, advance the open records related public interest in insuring that the alleged criminal activity was thoroughly investigated and vigorously prosecuted without favoritism or bias and transgress only minimally on the privacy interest of the suspect. Accordingly, we find that the Division's reliance on KRS 61.878(1)(a) to support redaction of the suspect's identity from the requested records was misplaced.
To the extent that the Division construes OAG 91-35 to authorize nondisclosure of the suspect's identity in all criminal cases that are cleared by exception, that decision is hereby modified.
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.
Footnotes
Footnotes
1 Ms. Spears submitted a similar request on August 18, 2005. Relying on KRS 61.878(1)(h), the Division denied this request on August 19, 2005. The Division explained that "[a] request has been made to . . . [the] Fayette County Commonwealth's Attorney to present this case before a Fayette County Grand Jury[; t]herefore, this investigation . . . is still open[.]" The Herald-Leader does not contest the Division's August 19 denial.
2 The Division's delay in responding was occasioned by an intervening action in Fayette Circuit Court in which the complainant in the case sought to prevent disclosure of the investigative file and the subsequent entry of an order by the circuit court directing that:
Any information in the case file which does not disclose the [complainant's] identity or for which the Lexington-Fayette Urban County Government Division of Police has no statutory or other basis for denial or redaction, including medical information given by the [the complainant] to investigators shall be released.
The Herald-Leader does not dispute redaction of the complainant's identity or information identifying her.
3 In response to this office's KRS 61.880(2) inquiries relating to the issue on appeal in 05-ORD-224, the Division explained that a complaint and offense report are:
cleared by exception when probable cause exists for an arrest and circumstances are such that the alleged perpetrator cannot be arrested due to circumstances out of the control of the police officers. These circumstances can vary, but may include: the suspected perpetrator is deceased or there has been a complaint of a misdemeanor that did not occur in the police officer's presence, [or] there is a failure to prosecute by the complainant.
Pursuant to KRS 431.005(1), a police officer may make a warrantless arrest for a misdemeanor only when the misdemeanor is committed in the presence of the officer except for shoplifting, DUI, fourth degree assault in a domestic situation, violation of protective order, or violation of the conditions of a domestic violence or abuse pre-trial order. In a misdemeanor that was not committed in the presence of a police officer pursuant to statute, the incident must be prosecuted through the District Court. To pursue prosecution, the complainant should file his complaint in the District Court which would then issue a summons or warrant to prosecute the complaint.
Because the police cannot make an arrest for a misdemeanor that is not committed in their presence and if the complainant fails to prosecute to the District Court, the complaint and offense report is cleared by exception. The report is held pending for one (1) year to allow the complainant to prosecute through the District Court. If the complainant does not prosecute through District Court within the one (1) year, the file is reopened.