Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police (KSP) properly relied on KRS 61.878(1)(a) in denying Travis Wayne Bush's June 16, 2009, request for a copy of a toxicology report on a named individual. For the reasons that follow, we conclude that the KSP's reliance on the cited exemption was not adequately supported.
Mr. Bush, an inmate at the Kentucky State Reformatory, requested "the blood test results of" one Amanda Marie Arlinghaus in connection with a matter in Kenton District Court involving the Fort Mitchell Police Department. He stated: "I request a copy of any and all documents concerning the Forensics Lab testing."
The KSP responded with a letter from records custodian Shiann N. Sharpe dated July 8, 2009. According to the letter, the KSP received Mr. Bush's request on June 29, 2009. Since July 8 was six (6) business days after June 29, we must conclude that this constituted a procedural violation of KRS 61.880(1), which requires a written response within three (3) business days. Substantively, Ms. Sharpe stated in her letter:
Your request is respectfully denied pursuant to KRS 61.878(1)(a), as the public disclosure of this report would constitute an unwarranted invasion of personal privacy. Should you obtain a notarized authorization form signed by the subject (or representatives of the estate if the subject is deceased) of the toxicology report, you may submit this form with another request for those reports.
Mr. Bush timely initiated an open records appeal on July 13, 2009.
In its response to this appeal submitted July 22, 2009, by Assistant General Counsel Roger G. Wright, the KSP elaborates on its position:
Appellant seeks production of a blood analysis toxicology report submitted to the Kentucky State Police Forensic Northern Laboratory Branch for a specified individual in connection with Kenton District Court Case No. 08-T-11687. For reference purposes, the subject toxicology report is identified as Laboratory Report No. 08-N-01757.
It is the position of the Department that toxicology reports that disclose the presence or absence of alcohol or other substances in a person's blood or other bodily fluids are subject to the weighing analysis of personal privacy interests mandated by KRS 61.878(1)(a). In this particular case, upon information and belief, the criminal charge filed against the individual who was the subject of the requested report was dismissed in the Kenton District Court on or about September 20, 2008. Under such circumstances, it is the position of the Department that any public interest in disclosure of the subject report is not [sic] outweighed by the individual's privacy interest. See OAG 91-35 (recognizing privacy interest of persons investigated for Medicaid fraud but not charged). The Department further submits that prior Attorney General opinions addressing the disclosure of toxicology reports are not dispositive of the personal privacy issue. See, e.g., 06-ORD-153 (holding that information in police documents does not constitute protected medical information for purposes of HIP[A]A, but upholding nondisclosure under prospective law enforcement action exemptions) . For all of the foregoing reasons, this appeal should be denied.
We agree that toxicology results are subject to the personal privacy analysis under KRS 61.878(1)(a). The previous decisions of this office, however, do not support applying the exemption in this case.
KRS 61.878(1)(a) authorizes public agencies to withhold:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
In 1992, the Kentucky Supreme Court established a standard by which we judge the propriety of a public agency's reliance on KRS 61.878(1)(a) as a basis for denying access to public records. At pages 327 and 328 of Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Court articulated the following standard:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute 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. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
The Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity . . . ." Id.
In a subsequent analysis of the privacy exemption, the Court of Appeals refined this standard. Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky.App. 1994). At page 828 of that opinion, the court discussed its "mode of decision":
[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. [Board of Examiners] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
Having recognized a cognizable privacy interest in the records at issue in that case, the court turned to the issue of whether an invasion of privacy was warranted based on a weighing of the public interest in disclosure against the privacy interest involved. The court reasoned:
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 princip[al] purpose of the Open Records Act. ? As stated in Board of Examiners, supra, "[t]he public's 'right to know' under the Open Records Act is premised upon the public's right to expect its agencies properly to execute their statutory functions. In general, inspection of 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. " 826 S.W.2d at 328. 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 at 828, 829. Recognizing the existence of competing interests when KRS 61.878(1)(a) is asserted, this office has stated that "it is incumbent on the agency advocating nondisclosure of records relating to an individual ? to satisfy its burden of proof that the privacy interests of that [individual] are superior to the public's interest in disclosure. " 00-ORD-162, p. 6.
"[W]hen 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 v. Com., Dept. of Workers' Claims, 902 S.W.2d 825, 828 (Ky.App. 1994). Although Ms. Arlinghaus was not convicted of a crime, it does appear that she "enter[ed] on the public way, " so that the presence or absence of intoxicating substances in her blood could become a legitimate matter of concern to law enforcement. When that situation in fact arose, so did a concomitant public interest in public oversight of the Fort Mitchell Police Department.
We are aware of no authority supporting a blanket rule that toxicology reports may be withheld from public inspection as long as the charges were dismissed. The KSP has cited OAG 91-35's conclusion that investigation records of the Attorney General's Medicaid Fraud Division were subject to the privacy exemption as long as the individuals investigated were not charged with a crime. In this case, however, Ms. Arlinghaus evidently was charged with an offense. Oddly enough, OAG 91-35 itself relies upon the reasoning in the following language from a federal court decision:
The decision to prosecute an individual for a crime is attended by consequences beyond the risk of conviction. When the individual or the crime has attracted general notoriety, institution of proceedings typically provokes wide spread speculation attended by at least some damage to the reputation of the individual involved. Common experience teaches that this speculation is not quieted when, and if, a jury finally announces its verdict. Typically, the decision not to prosecute insulates individuals who have been investigated but not charged from this rather significant intrusion into their lives.
Fund for Constitutional Govt. v. Natl. Archives & Records Service, 656 F.2d 856, 864 (D.C. Cir. 1981). This analysis suggests that if any bright line demarcates a heightened privacy interest, it is the line between being charged and not being charged. While we need not decide whether such a bright line exists in all cases, we believe that Ms. Arlinghaus, once charges were brought against her, had a reduced expectation of privacy in the records relating to those charges.
In 00-ORD-162 (copy attached), this office dealt with the application of KRS 61.878(1)(a) to, inter alia, toxicology reports on one of the victims of a fatal shooting incident. We recognized the strong privacy interests of the victim's family members, but ultimately found that the balance weighed in favor of the public interest in disclosure:
Notwithstanding the fact that they document what is undoubtedly a painful memory for the victims and victims' family, we find that the public's interest in insuring that the Barren County Sheriff's Department properly discharged its duty to investigate the crimes outweighs their privacy interest in the records.
00-ORD-162, p. 10. Nothing in the KSP's response would indicate that Ms. Arlinghaus' privacy interest is more compelling than that of the shooting victim's family in 00-ORD-162. For this reason, we conclude that the KSP improperly relied upon KRS 61.878(1)(a) in refusing Mr. Bush access to the toxicology report concerning Ms. Arlinghaus.
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 proceedings.