Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police (KSP) violated the Open Records Act in partially denying Clarence T. Hurst's May 26, 2008, request for a copy of a digital audio CD of a criminal investigative interview with a female inmate who alleged she had engaged in sexual misconduct with Mr. Hurst at the Warren County Jail.
By letter dated May 30, 2008, KSP denied the request, advising Mr. Hurst that "because the interviewee was an alleged victim of sexual abuse, any medium, i.e., audio or video recording, is removed pursuant to KRS 61.878(1)(a) as disclosure of this information would constitute a clearly unwarranted invasion of personal privacy. "
Shortly thereafter, Mr. Hurst initiated the instant appeal arguing that since this involved a closed investigation in which he was the focus he was entitled to the audio CD.
After receipt of notification of the appeal, Roger Wright, KSP, by letter dated June 20, 2008, provided this office with a response to the issues raised in the appeal. In his response, he advised:
The Department maintains that the name and identity of alleged victims of unlawful sexual contact (even if such contact was consensual) should be generally exempt from production by virtue of KRS 61.878(1)(a). However, the Department feels compelled by the decision rendered in OAG 08-ORD-125 to release a portion of the requested interview to Hurst in that the cited opinion identifies the female victim by name (thus mooting concerns as to her identity) and further opines that Hurst's status as a former governmental employee entitles him to greater access to records relating to himself by virtue of KRS 61.878(3).
However, in reviewing the subject interview tape for other possible warranted redactions, it has been determined that the interview subject makes accusations against other persons unrelated to the issue regarding Hurst. As such, the Department intends to provide Hurst with a copy of the interview with such accusations against unrelated persons redacted pursuant to KRS 61.878(1)(a). . . .
In a June 30, 2008, reply to KSP's June 20, 2008, letter Mr. Hurst argues in part that he is entitled to an unredacted copy of the audio CD, under authority of KRS 61.878(3), because any accusations against other persons were procured during an investigation of which he was the subject.
Pursuant to KRS 61.880(2)(c) and to facilitate our review of the issue on appeal, we requested the KSP to provide this office with a copy of the audio CD for in camera inspection. We have listened in camera to the unredacted audio CD at issue. As directed by KRS 61.880(2)(c), we cannot disclose the contents of this record. However, we can provide a general description of the record in reaching a decision as to whether an agency has acted consistently with the Open Records Act in relation to that record. To summarize generally, the audio contains not only accusations against Mr. Hurst, but also accusations by the alleged victim that other employees of the Warren County Jail had engaged in certain sexual misconduct. The KSP indicated that these accusations had been redacted from the audio CD provided to Mr. Hurst.
To begin, since the KSP has agreed to provide Mr. Hurst with an unredacted copy of the portion of the audio CD that relates to him, the issue as to access to that portion of the audio is moot. 40 KAR 1:030, Section 6.
We next address whether the KSP properly redacted portions of the audio in which the subject of the interview made accusations against other persons unrelated to the issue regarding Hurst. For the reasons that follow, we conclude that the KSP improperly relied upon KRS 61.878(1)(a) in redacting those portions of the audio CD.
Although "the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context,
Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992), this office has generally held that the privacy interest of public employees who have been disciplined for charges of misconduct or exonerated of such charges in the course of their employment is outweighed by the public interest in monitoring agency action. 02-ORD-231, p. 2. As we observed in 96-ORD-86:
In analyzing the propriety of release of records relating to complaints against public employees and public employee discipline, the courts and this office have consistently recognized that "disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know. " [S]ee also, City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1983); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co. 663 S.W.2d 953 (Ky. App. 1983); Kentucky Board of Examiners, [supra]; OAGs 81-127, 81-291, 83-41, 84-315, 85-126, 85-136, 89-13, 89-73, 89-74, 91-33, 91-45, 91-62, 91-81, 91-90, 92-34, 94-ORD-27, 95-ORD-47.
Disclosure of such records is not, in general, prohibited by KRS 61.878(1)(a) as a clearly unwarranted invasion of personal privacy. This view is premised on the notion that:
02-ORD-231, pp. 2, 3; See also
Palmer v. Diggers, 60 S.W.3d 591 (Ky. App. 2001).
At issue in 02-ORD-231 was whether the Justice Cabinet had violated the Open Records Act in denying a reporter's request for access to sexual harassment complaints, grievances or informational correspondence alleging misconduct against the former State Police Commissioner, the results of the investigations into those complaints/grievances or allegations and the response and actions taken by the Cabinet regarding same. Recognizing that sexual harassment complaints are of a uniquely sensitive nature, we nevertheless concluded that conduct giving rise to such complaints can only be characterized as misconduct of the most egregious character, and a matter in which the public has at least as great, if not a greater, interest than other forms of misconduct. In reaching that conclusion, we stated that although formal charges were never leveled against the commissioner, "we do not believe that the particular complaints at issue in this appeal, and consequent . . . decisions to take no action, should be excepted from the 'general rule of inspection' and its underlying policy of openness for the public good . . . ." 96-ORD-86, citing Kentucky Board of Examiners at 327.
In 05-ORD-005, p. 4-5, we observed:
In general, records relating to allegations of impropriety concerning public employees in the course of their public employment are not shielded from disclosure by operation of KRS 61.878(1)(a). That provision authorizes public agencies to withhold:
In
Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001), a police officer against whom allegations of misconduct had been leveled attempted to invoke KRS 61.878(1)(a), inter alia, as the basis for denying a request for the complaint containing those allegations. The Kentucky Court of Appeals rejected the officer's claim, notwithstanding the personal nature of the allegations against him, observing:
We believe the complaint against Palmer presents a matter of unique public interest. At the time of the complaint, Palmer was an Owensboro police officer, who was sworn to protect the public. The complaint charged specific acts of misconduct by Palmer while he was on duty. Since the question of the disclosure of the details of this alleged misconduct is the reason for this appeal, we will generally describe the alleged misconduct as Palmer neglecting his duty to the public by having an inappropriate relationship with another police officer while on duty. We believe the public has a legitimate interest in knowing the underlying basis for a disciplinary charge against a police officer who has been charged with misconduct under KRS 95.450. While the allegations of misconduct by Palmer are of a personal nature, we hold that the public disclosure of the complaint would not constitute a clearly unwarranted invasion of Palmer's personal privacy.
Palmer at 598; accord, OAG 91-41; 98-ORD-45; 99-ORD-39; 00-ORD-104; 02-ORD-140, 04-ORD-031 (recognizing that "[p]ublic service is a public trust[, and] this office has consistently held that the public has a right to know about [a public] employee's misconduct and any resulting disciplinary action taken against the employee. These opinions hold [that] either no privacy interest existed under the facts, or if a cognizable privacy interest existed that it was outweighed by the public's right to be informed.")
Although Mr. Hurst would not be entitled to the redacted portions of the audio CD under KRS 61.878(3), as they are not records that relate to him, we conclude that the redacted portions of the audio CD containing accusations of misconduct by other public employees are not exempt from disclosure under KRS 61.878(1)(a). Accordingly, we find that KSP's reliance upon KRS 61.878(1)(a) in redacting portions of the audio CD containing accusations of misconduct by other public employees, not the subject of the investigative interview, was misplaced; and Mr. Hurst is entitled to an unredacted copy of the audio CD.
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.