Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Highland Heights Police Department violated the Kentucky Open Records Act in failing to respond upon receipt of Travis Bush's written request for "any and all Uniform Citations, statements from witnesses, and any police photographs relating to any criminal complaints filed against [him] at [the] Department." In failing to issue a timely written response, referencing the applicable statutory exception(s) and briefly explaining how it applied to any records, or portions thereof being withheld, the Department violated the mandatory terms of KRS 61.880(1). Although the Department ultimately provided Mr. Bush with a copy of the responsive "Investigation Report," with only the name of the juvenile victim redacted, the Department failed to offer any explanation of how KRS 61.878(1)(a) applies, despite having a second opportunity to satisfy its burden of proof under KRS 61.880(2)(c). Given the significant policy considerations involved, this office is nevertheless compelled to engage in a substantive analysis rather than compound this error by declining to address the merits of the issue presented. 1 In sum, this office extends application of the reasoning found in 02-ORD-36, and later adopted in
Cape Publications v. City of Louisville, Ky. App., 147 S.W.3d 731 (2004), (affirming redaction of names and identifiers of sexual offense victims from police "incident reports" per KRS 61.878(1)(a)), to police investigation records in light of the victim's age; however, this office remains of the view that agencies "may not withhold the identities of all crime victims as a matter of policy, and believe[s] that the majority of cases will be governed by the rule announced in 96-ORD-115 and 99-ORD-27." 2
Upon receipt of Mr. Bush's appeal from this office, in which he challenged the agency's failure to issue a written response upon receipt of his request dated April 16, 2009, Steven J. Franzen, City Attorney, responded on behalf of the Department, initially explaining that his client had forwarded the original request "to the Campbell County Commonwealth Attorney's Office to be handled by them." Apparently, each agency assumed the other was "handling it." In any event, Mr. Franzen enclosed copies of "the only records the City of Highland Heights possesses pertaining to this matter. . . . This consists of an investigation report." However, Mr. Franzen advised that "the victim[']s name has been redacted from this report pursuant to KRS 61.878(1)(a)." 3
As a public agency, the Department is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 4 More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . 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." A "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. " (Emphasis added). When construing the mandatory language of this provision, the Kentucky Court of Appeals observed that 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.
It logically follows that failing to issue any written response, as the Department admittedly did here, constitutes a violation of KRS 61.880(1). On appeal, the Department explains that "a miscommunication between the Campbell County Commonwealth Attorney's Office and the [Department]," resulted in this procedural error. The record on appeal is devoid of evidence to suggest bad faith on the part of the Department; however, the Department's belated response is also procedurally deficient insofar as the requisite brief explanation is noticeably absent.
A public agency such as the Department must cite the applicable exception and provide a brief explanation of how that exception applied to the records, or portions thereof withheld per KRS 61.880(1), in order to satisfy the burden of proof imposed upon public agencies per KRS 61.880(2)(c). 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As the Attorney General has consistently recognized:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106. In the same vein, this office has observed:
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).
On appeal, the Department referenced KRS 61.878(1)(a), but still neglected to provide any explanation of how that exception applies to the information being withheld. Bearing in mind that public agencies have the burden of proof per 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 Department violated the Act in failing to comply with the mandatory terms of this provision.
Edmondson v. Alig, supra, at 858; see 97-ORD-170. When responding to future requests, the Department 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. That being said, this office is compelled to undertake a substantive analysis of the issue presented rather than compound this error by instructing the Department to release information, the disclosure of which "would constitute a clearly unwarranted invasion of person privacy" within the meaning of KRS 61.878(1)(a).
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), "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 and the need for governmental confidentiality . . . suggest[ing] an absence of legislative intent to create unrestricted access to records." Beckham 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).
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. 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. As the Court observed, 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 because 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.] . . . [T]he 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.
Zink, supra, at 828-829.
Resolution of this appeal hinges, to a large extent, on the reasoning found in 02-ORD-36, a copy of which is attached hereto and incorporated by reference. In that decision, the Attorney General reaffirmed the longstanding position 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, but recognized, for the first time, a narrow exception for the victims of sexual offenses identified at KRS Chapter 510. 6 Acknowledging the "compelling public interest in access to records reflecting the identities of crime victims," this office found that "a developing body of federal and state law, coupled with a perhaps long-overdue recognition of the singularly traumatic consequences of crimes of sexual violence," required modification of its position. Id., p. 8.
Based upon the summarized case law, 7 this office reasoned as follows:
It is our opinion that the victims of these crimes share a substantial privacy interest in the nondisclosure of their identities. This privacy interest is postulated on the victims' need to avoid public exposure as they cope with the singularly traumatic physical and psychological consequences of the crimes perpetrated against them, crimes that have been characterized as the "ultimate violation of self." Coker v. Georgia, 433 U.S. 584, 597 (1977) cited in Justice White's dissent in Florida Star v. B.J.F., 491 U.S. 524, 542-43 (1989). Against this substantial interest, we weigh the competing public interest in monitoring the [agency's] investigative response to the sexual offense reported. While this too is a substantial interest, we do not believe that it outweighs the privacy interests of victims of sexual offenses, particularly when those privacy interests are coupled with a compelling public interest in insuring the physical safety of the victims and encouraging them to report sexual offenses without fear of exposure.
Id., p. 10. 8 Recognizing that our decision represented "a significant departure from previous open records decisions," this office remained of the "view that the [agency] may not withhold the identities of all crime victims as a matter of policy," and "that the majority of cases will be governed by the rule announced in 96-ORD-115 and 99-ORD-27." 02-ORD-36, p. 11. Significantly, the Attorney General expressly limited this modified position "to the names and information identifying victims of sexual offense [s] that appear in incident reports." Id.
In Cape Publications v. City of Louisville, the Kentucky Court of Appeals adopted the reasoning found on page 10 of 02-ORD-36 as its own. 9 See 08-ORD-146 (EKU properly withheld both name of juvenile victim, who was approached by alleged sex offender for purposes of unlawful transaction, and personal identifiers from incident report on basis of KRS 61.878(1)(a)); 07-ORD-207. Although the instant appeal is factually distinguishable, insofar as investigation records are in dispute rather than incident reports, extension of this reasoning to investigation records is warranted on these facts, in accordance with 96-ORD-115, based on the "nature and circumstances of the crime."
In 96-ORD-115 (identity of juvenile victim of drive-by shooting was properly withheld) , a copy of which is attached hereto and incorporated by reference, the narrow question presented was "whether juvenile victims of crime have a heightened privacy interest in records relating to the crimes against them, and are thus entitled to greater protection under KRS 61.878(1)(a), than adult victims of crime generally receive." Id., p. 2. Recognizing "a public policy which militates in favor of protecting the privacy of juvenile victims of crime, and which is consistent with the policies evidenced in the Unified Juvenile Code," 10 this office "stop[ped] short of approving a policy of blanket nondisclosure relative to records disclosing the identities of juvenile victims of crime. " Id. Rather, the Attorney General found that "the weight to be assigned to the privacy interest corresponds to the nature and circumstances of the crime perpetrated against the juvenile, and that the public interest in monitoring agency action in investigating that crime may, in some instances, outweigh an otherwise de minimus privacy interest. " Id. For example, "the privacy interest of a juvenile who is the victim of sodomy and sexual abuse, or in this case assault [or Rape in the Third Degree] , must be assigned greater weight than the privacy interests of a juvenile whose tennis shoes are stolen from his locker." 96-ORD-115, p. 4. See 93-ORD-42 (allegations of sodomy, sexual abuse, and unlawful transaction with a minor made by juveniles "'touch [] upon the most intimate and personal features of private lives'")(citation omitted).
Here, as in 96-ORD-115, the privacy interests of the juvenile victim are superior, and particularly so given the nature of the offense. In reaching this determination, the Attorney General considers "a number of relevant factors, including the seriousness of the crime [Rape in the 3rd Degree], the circumstances under which it was committed [at the victim's home after she met perpetrator online], and the adverse impact on the juvenile victim of further disclosure [see above, relating to sexual offenses in general]." Id. When viewed in conjunction, the narrow exception for victims of sexual offenses first articulated in 02-ORD-36, and later adopted in Cape Publications, and the factors identified as relevant in weighing the privacy interests of juvenile victims in 96-ORD-115, lead this office to conclude that redaction of the juvenile victim's name from the investigation records in dispute is warranted here on the basis of KRS 61.878(1)(a). Compare 98-ORD-123 (report documenting accidental shooting of juvenile was improperly withheld) .
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.
Distributed to:
Travis Bush, #213275Carl MullenSteven J. Franzen
Footnotes
Footnotes
1 In Edmondson v. Alig Ky. App., 926 S.W.2d 856 (1996), the Court of Appeals found that despite undeniable deficiencies in the agency's response, the circuit court had improperly ordered release of the records, "presumably as the only sanction available . . . ." Id. at 859. Noting the "crucial issue-that of the exempt status of the material sought to be disclosed-has been overlooked entirely[,]" the Court held that "it is incumbent upon the circuit court to examine this material and to make a determination as to whether it is substantively exempt from disclosure" lest the agency's error be compounded by disclosure of records intended to be protected from public scrutiny. Id.1 As in 00-ORD-148, this office finds that although the Court did not extend the holding of Edmondson to the Office of the Attorney General, "which acts in a quasi-adjudicative role in resolving open records disputes pursuant to KRS 61.880(2), and this office rarely assays to invade the circuit courts' prerogative, the appeal before us has far-reaching policy implications . . . which compel us to undertake a substantive analysis of the disputed records." Id., p. 4.
2 02-ORD-36, p. 11, quoted in Cape Publications, p. 3 (original emphasis).
3 According to said report, the offense was Rape in the 3rd degree, and the victim was fourteen years old.
4 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
5 Applying this standard, the Court of Appeals determined that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying the request of an attorney for access to injury report forms filed with the Department which contained identifying information such as marital status, number of dependents, wage rate, social security number, home address, and telephone number. Zink, supra.
6 These offenses are: rape in the first, second, and third degree, sodomy in the first, second, third, and fourth degree, sexual abuse in the first, second, and third degree, sexual misconduct, and indecent exposure in the first and second degree.
7 Specifically, Board of Examiners, Zink, and Beckham, supra, and Bowling v. Brandenburg, Ky. App., 37 S.W.2d 785 (2000), on the state level, and Kallstrom v. City of Columbus, 136 F.3d 1055 (6th Cir. 1998), Block v. Ribar, 156 F.3d 673 (6th Cir. 1998), and De'ja Vu of Nashville, Inc. et al. v. The Metropolitan Government of Nashville & Davidson County, TN, et al., 274 F.3d 377 (6th Cir. 2001), on the federal level.
8 Just as the Court in Board of [Examiners] "attached the same weight to the clients' privacy interests in their complaint files, and the court in Zink attached the same weight to the injured workers' privacy interests in their home addresses, wage data, and social security numbers," this office attached "the same weight to the privacy interests of the victims of sexual offenses in their names and information identifying them." 02-ORD-36, p. 10. This office concluded that, "in general, that interest outweighs the public's interest in scrutinizing the [agency's] response, an interest that is otherwise served by disclosure of the redacted incident reports." Id.
Accordingly, this office found that law enforcement agencies may redact "the names and addresses of the victims of sexual offenses, the location of the offenses if the offenses occurred in the victim's homes, and the complainants' signatures if the complainant and victim are one and the same. No other redactions are permissible." Id.
9 In Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., Ky., 941 S.W.2d 469, 472 (1997), cited favorably in Cape Publications, the Kentucky Supreme Court noted that the "Court had no difficulty concluding in Board of Examiners of Psychologists that information which would have revealed the identities of persons who had been sexually victimized should not be produced."
10 Another example of the "legislative commitment to protecting the privacy of children who have fallen victim to sexual abuse" is KRS 620.050(5), relating to the confidentiality of information obtained by the Cabinet for Health and Family Services or its delegated representative in the course of investigating reports of suspected abuse, neglect or dependency. 93-ORD-42, p. 5. Further evidence of this public policy can be found in the Electronic Case Filing Administrative Policies and Procedures for the United States District Courts for the Eastern and Western Districts of Kentucky, which provide as follows regarding names of minor children: "If the involvement of a minor child must be mentioned, only the initials of that child should be used."