09-ORD-201 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General

Open Records Decision

The question presented in this appeal is whether the City of Hopkinsville violated the Open Records Act in partially denying Kentucky New Era Staff Writer and News Editor Julia Hunter's September 3, 2009, request to inspect unredacted 1 copies of Hopkinsville Police Department "arrest citations" for an eight month period that related to seven criminal offenses 2 and unredacted HPD reports, including KYIBRS reports, for the same period that did not result in arrests but "report[ed] any threats made toward an individual or a group of individuals." Although the City's efforts to honor Ms. Hunter's request were commendable, we find that it failed to meet its statutorily assigned burden of proof in withholding, in their entirety, all uniform citations and KYIBRS reports that related to open investigations, pursuant to KRS 61.878(1)(h), or that involved a juvenile, pursuant to KRS 610.320, and in redacting, as a matter of policy, the date of birth, home address, telephone number, marital status and, "in some instances, the name of the individual witness, suspect, or victim identified in a report," pursuant to KRS 61.878(1)(a).

In her letter of appeal, Ms. Hunter emphasized the right of the public "to know about the crimes being committed in the community and how the police department" responded. She maintained that nondisclosure of all records relating to ongoing investigations and juveniles, and redaction of identifying information "such as date of birth, address, gender, race, ethnicity, and phone numbers of victims and offenders, " from the records disclosed constituted "overreaching." The City responded that Ms. Hunter's arguments "are tantamount to an interpretation of the law which would require the blanket disclosure of all information contained in police records."

Elaborating on this position, Assistant Hopkinsville City Attorney J. Foster Cotthoff explained:

The General Assembly has acted very specifically with regard to records related to juvenile offenders. KRS 610.320(3) provides that "all law enforcement and court records regarding children who have not reached their eighteenth birthday shall not be opened to scrutiny by the public . . ." [emphasis added]. The language of the statute is clear. A public agency may exempt law enforcement records related to juvenile offenders from disclosure under the Kentucky Open Records Act. In fact, the use of the word "records" by the General Assembly in KRS 61.878(1)(l) 3 and in KRS 610.320(3) supports a public agency in adopting and enforcing a blanket policy of nondisclosure of all records regarding juvenile offenders.

Mr. Cotthoff maintained that because KRS 61.878(1) and KRS 610.320(3), operating in tandem, mandate nondisclosure of the entire record, the City was precluded from releasing the records in their entirety and therefore could not discharge the KRS 61.878(4) duty to redact.

Mr. Cotthoff defended the City's denial of access to records of open investigations pursuant to KRS 61.878(1)(h) as follows:

The City only withheld records compiled in the course of investigation where the release of the information would potentially harm the current or future prosecution of crime by revealing unknown informants or where the release of information would potentially impede future law enforcement action. . . . Only the agency and the officers directly involved in investigation are truly in a position to make a valid determination as to whether the release of information could be detrimental to an open case.

In support, he cited 04-ORD-041 in which the Attorney General acknowledged the discretion of law enforcement agencies "to decide when a case is active, merely inactive, or finally closed."

Finally, Mr. Cotthoff addressed the City's policy of redacting the personal information of victims, suspects, and witnesses, asserting that disclosure of "social security number, home address, telephone number, marital status, and, in some instances, the name of the individual witness, suspect, or victim identified in a report . . . would constitute a clearly unwarranted invasion of privacy . . . that clearly outweighs Ms. Hunter's generalized interest in disclosure. " He advised:

In dealing with information that individuals generally regard as private, such as social security number, marital status, birth date, and home contact information, the City applies a blanket policy of nondisclosure and redacts all such information from responsive records. With the names of suspects, victims, and witnesses, on the other hand, the City employs a case-by-case analysis to determine whether the information can properly be withheld. This analysis depends on a variety of unique factors. For example, whether the case resulted in individuals being charged with a crime and the particular crime involved, if the case involves juvenile victims or witnesses, whether the case involved sexual crimes, and whether disclosure would place a particular witness or informant in harm's way.

Mr. Cotthoff urged the Attorney General to "revisit and clarify" past open records decisions, in light of Cape Publications v. City of Louisville, 147 S.W.3d 731 (Ky. App. 2003) and H-L Services, Inc. v. Lexington-Fayette Urban County Government, No. 2008-CA-000068-MR (Ky. App. 2009) petition for discretionary review pending, as they relate to "blanket requests . . . [for] sensitive law enforcement records," by "recogniz[ing] and giving effect to recent court rulings that do not prohibit blanket redaction policies and clearly hold that case-by-case examination and weighing of antagonistic interests is a function of the courts rather than the agencies receiving requests." He suggested an alternative approach in which public agencies are allowed "to redact personal information and then allow the requester to seek additional clarification from the agency when a specific document raises a more acute or particularized interest for the requester, " concluding that "this approach is more aligned with a policy of disclosure . . . , and results in more timely disclosure for public review."

While the City's suggested approach may ease the burden on public agencies in responding to open records requests, it is not within our discretion to shift the statutorily assigned burden of proof 4 from the agency to the requester per the City's suggested approach, and we do not believe that, in general, the Open Records Act authorizes that approach. Affirming the Attorney General's open records decision, 02-ORD-36, Cape Publications v. City of Louisville, above at 733, stands for the limited proposition that "identifying information concerning victims of sexual offenses is of a private nature" and to disclose that information to the public would constitute a "clearly unwarranted invasion of personal privacy." The court expressly limited its holding to the shared privacy interest of victims of sexual offenses, emphasizing that "police incident reports are matters of public interest . . .[,] are public records . . . [, and] the public should be allowed to scrutinize the police to ensure they are complying with their statutory duty." Id. Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government, above, is a non-final opinion to which we cannot accede unless the petition for discretionary review is denied and that opinion becomes final or the petition for discretionary review is granted and that opinion is affirmed. As we observed in a recent open records decision, "A concern for the stability of legal interpretations, and for the reasonable expectation of parties relying on those interpretations made by this office, cautions against a reversal of our prior decisions in the absence of some material change in the underlying statutes or [binding] judicial opinions that compels a different outcome." 09-ORD-020, p. 4.

Accordingly, we find that the City of Hopkinsville failed to meet its burden of proof in withholding, in their entirety, all uniform citations and KYIBRS reports relating to open investigations, pursuant to KRS 61.878(1)(h), or involving a juvenile, pursuant to KRS 610.320. With regard to records of open investigations, we concur with the City in the view that records compiled in the process of investigating statutory or regulatory violations are generally protected from public disclosure until enforcement action is completed, but only upon a showing of particularized harm from premature disclosure of those records by the law enforcement agency.

Although we have generally yielded discretion to the law enforcement agency to determine if a case is open, inactive, or closed, resolution of the question of the agency's reliance on KRS 61.878(1)(h) otherwise turns on the agency's ability to justify denial of an open records request with proof of harm that would result from premature disclosure of the records in dispute. See, e.g., 02-ORD-36; 04-ORD-188; 05-ORD-003; 07-ORD-139; 08-ORD-105. With the exception of those portions of reports that identify victims of sexual offenses, protected from disclosure by KRS 61.878(1)(a), we have not construed KRS 61.878(1)(h) to extend protection to all or any portion of uniform citations or KYIBRS reports, absent a particularized showing of harm, solely because they relate to an open investigation. Acknowledging that the City of Hopkinsville expended some thirty hours in compiling responsive records, consisting of approximately 400 pages, we find that the City failed to meet its burden of proof in relying on KRS 61.878(1)(h) to withhold uniform citations and KYIBRS reports relating to open investigations without a showing of harm. Simply stated, an assertion of "potential harm" by release of information that "would potentially impede future law enforcement action" 5 does not satisfy the City's statutory burden to sustain the action. 6

Nor does the assertion that "any reports regarding juveniles will not be provided pursuant to KRS 610.320." 7 While again we agree with the City that subsection (3) of that provision prohibits disclosure of all law enforcement records regarding children under the age of eighteen, subject to certain statutorily engrafted exceptions, we do not agree that the law extends protection to a uniform citation or KYIBRS report solely because it contains the name of a juvenile. "The purpose of the shroud of secrecy and confidentiality mandated by . . . [Chapter 610] is to protect the juvenile, " the Kentucky Supreme Court has observed, "it was intended that trials of juveniles not be publicized in the news media, as such publicity would possibly deprive the juvenile of a fair trial and, more importantly, would likely diminish his or her prospect for rehabilitation." F.T.P. v. Courier-Journal and Louisville Times Co., 774 S.W.2d 444, 446 (Ky. 1989).

The purpose underlying the shroud of secrecy aimed at protecting juvenile offenders is not furthered by the nondisclosure of records identifying juvenile victims or witnesses, and the Attorney General has so recognized in past open records decisions. See, e.g., 96-ORD-115; 97-ORD-77; 98-ORD-123; 98-ORD-185; 99-ORD-29; 08-ORD-105; 09-ORD-086. We find no authority in the statutes, or elsewhere, for the City's position that the legislative intent that informs KRS 610.320(3) is to protect any law enforcement record in which a juvenile's name appears. The City's reliance on KRS 610.320(3) to support nondisclosure of uniform citations and KYIBRS reports that contain the names of juvenile victims or witnesses was therefore misplaced. The City may, of course, invoke KRS 61.878(1)(a) to withhold juvenile victim or witness names if it presents sufficient proof concerning the seriousness of the incident in which the juvenile was victimized, or which the juvenile witnessed, and the adverse impact on the juvenile that would result from disclosure.

Finally, we find that the City's policy of blanket redaction relative to marital status, birthdate, and home contact information is not supported by KRS 61.878(1)(a). In 04-ORD-188, this office expressly rejected an agency's attempt to withhold, as a matter of policy, categories of information from law enforcement records on the basis of KRS 61.878(1)(a). At page three of that decision, we opined 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. " 8 See also 05-ORD-003; 08-ORD-105. We concluded that a law enforcement agency has "a statutory duty to release [the requested records] for public inspection in full and without redactions absent a particularized showing of a heightened privacy interest in an individual record." 08-ORD-105, p. 4 citing 04-ORD-188.

Here, as in 04-ORD-188, we reject the City's suggested approach that would permit the records custodian to redact personal information as a matter of policy and thereafter shift the burden of proof to the Kentucky New Era to articulate "a more acute or particularized interest" in a record. 9 The Open Records Act, in its present form and as interpreted by the courts in binding precedent, does not permit such an approach. Although we find no error in the City's practice of applying a case-by-case analysis to determine if names can properly be withheld, we find that because the City of Hopkinsville failed to advance specific arguments supporting a heightened privacy interest in the identifiers redacted as a matter of policy, it failed to meet its burden of proof in withholding those identifiers.

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.

Julia HunterChristine F. Upton, MMCJ. Foster Cotthoff

Footnotes

Footnotes

1 Ms. Hunter acknowledged the necessity of redacting social security numbers.

2 Those criminal offenses were identified as: first degree stalking, second degree stalking, harassing communications, harassment, first degree terroristic threatening, second degree terroristic threatening, or third degree terroristic threatening.