Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Covington Police Department violated the Kentucky Open Records Act in partially denying Chris Henson's February 18, 2010, request for various offense/incident reports. 1 Although the CPD otherwise complied, the agency withheld "juvenile criminal reports in which the perpetrators of the public offenses are under the age of 18" on the basis of KRS 610.320(3). Based upon the mandatory language of this confidentiality provision, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and consistent with prior decisions, the Attorney General affirms the disposition of Mr. Henson's request.
By letter dated February 27, 2010, Mr. Henson initiated this appeal, citing KRS 61.878(4) in support of his position that exempt material should have been redacted from the report(s) and the remainder should have been provided to him. 2 Upon receiving notification of Mr. Henson's appeal from this office, T. Alex Mattingly, Assistant City Solicitor, responded on behalf of the CPD, initially reiterating that "it has the obligation and a right to exclude KYIBRS reports and uniform citations identifying juveniles as a subject, arrestee and/or defendant from public disclosure. " According to Mr. Mattingly, KRS 610.320(3) and KRS 61.878(1)(l) validate the agency's position, which is "further supported by 09-ORD-201 and 06-ORD-212, and partially addressed and supported by many other Open Records Decisions issued by the Kentucky Attorney General."
Elaborating upon his client's position, Mr. Mattingly explained:
The report that Mr. Henson requests easily falls into the exempt category. It contains the name, home address and other information related to an alleged offense committed by a juvenile. It would not be lawful or appropriate for the [CPD] to release this information. See KRS 610.320(3); 06-ORD-212; 96-ORD-115. As the Kentucky Attorney General has noted, statutory protections specific to juvenile offenders are the reason for the "shroud of secrecy" involving such records. 09-ORD-201, p. 4.
Henson's suggestion that all juvenile information be redacted, and the rest of the report disclosed, is faulty. Disclosure of non-redacted information would run afoul of the law cited above and would still provide information that could identify the juvenile, which could endanger that person and/or create liability for the [CPD]. KRS 610.320(3) does not make any exception allowing the release of redacted documents involving a juvenile suspect or defendant.
Because KRS 610.320(3) expressly prohibits the CPD from releasing all "law enforcement and court records" identifying juvenile offenders, in their entirety, with very limited exceptions relating to court records, which do not apply here, and this provision is incorporated into the Act by operation of KRS 61.878(1)(l) , this office finds no error in the agency's denial of Mr. Henson's request. (Emphasis added.) Prior decisions validate our holding.
Our limited role in resolving the substantive question presented "is to ascertain and give effect to the intent of the General Assembly."
Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing
Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). In discharging this duty, the Attorney General is at liberty to neither add nor subtract from the legislative enactment "nor discover meaning not reasonably ascertainable from the language used." Id. As with any decision involving statutory interpretation, this office must refer to the literal language of the statute as enacted rather than surmising the meaning that may have been intended but was not articulated.
Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, the Attorney General "must construe all words and phrases according to the common and approved uses of language."
Withers v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). It is axiomatic that when two statutes concern the same or similar subject matter, the specific prevails over the general. Stogner, above, at 835; 02-ORD-19; 03-ORD-222; 07-ORD-233. In addition, the General Assembly is "presumed to be aware of the existing law at the time of enactment of a later statute." Id. Our analysis is necessarily guided by these fundamental principles, as well as the statement of legislative policy codified at KRS 61.871, "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed[.]"
Among those records removed from application of the Open Records Act in the absence of a court order are those described at KRS 61.878(1)(l) as "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Resolution of the instant appeal turns on KRS 610.320(3), pursuant to which:
All law enforcement and court records regarding children who have not reached their eighteenth birthday shall not be opened to public scrutiny by the public, except that a separate public record shall be kept by the clerk of the court which shall be accessible to the public for court records, limited to the petition, order of the adjudication, and disposition in juvenile delinquency proceedings concerning a child who is fourteen (14) years of age or older at the time of the commission of the offense, and who is adjudicated a juvenile delinquent for the commission of an offense that would constitute a capital offense or a Class A, B, or C felony if the juvenile were an adult, or any offense involving a deadly weapon, or an offense wherein a deadly weapon is used or displayed.
(Emphasis added.) This confidentiality provision is unquestionably incorporated into the Open Records Act by operation of KRS 61.878(1)(l); accordingly, the relevant analysis is relatively straightforward notwithstanding Mr. Henson's assertion that redaction is appropriate.
KRS 610.320(3) is found in Chapter 610 of the Kentucky Revised Statutes relating to "Procedural Matters" in Juvenile Court. Pursuant to KRS 610.010(1), the juvenile session of the District Court of each county has exclusive jurisdiction in proceedings "concerning any child living or found within the county who has not reached his or her eighteenth birthday or of any person who at the time of committing a public offense was under the age of eighteen (18) years, who allegedly has committed a public offense prior to his or her eighteenth birthday, except a motor vehicle offense involving a child sixteen (16) years of age or older." Cases that fall within the exclusive jurisdiction of the juvenile session of the District Court in each county or the family division of the Circuit Court include proceedings involving any child who is under the age of 18 and who allegedly:
(a) Is beyond the control of the school or beyond the control of parents as defined in KRS 600.020;
(b) Is an habitual truant from school;
(c) Is an habitual runaway from his or her parent or other person exercising custodial control or supervision of the child;
(d) Is dependent, neglected or abused;
(e) Has committed an alcohol offense in violation of KRS 244.085;
(f) Has committed a tobacco offense as provided in KRS 438.305 to 438.340;
or
(g) Is mentally ill.
KRS 610.010(2). Chapter 610 does not govern criminal proceedings involving adults charged with offenses against children. See 93-ORD-42, p. 9.
As the Kentucky Supreme Court expressly recognized in
F.T.P. v. Courier-Journal and Louisville Times Co., 774 S.W.2d 444, 446 (Ky. 1989):
The purpose of the shroud of secrecy and confidentiality mandated by . . . [these] statutes is to protect the juvenile. 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.
See 98-ORD-123; 98-ORD-185; 09-ORD-201. This office has long recognized that "the purpose underlying these provisions relative to juvenile court records also underlies KRS 610.320(3) relative to juvenile law enforcement records. " 3 93-ORD-42, p. 10 (original emphasis). Thus, in 98-ORD-123, this office identified the purpose for which this provision was enacted as being "to ensure that the juvenile receives a fair trial and enhance his prospects for rehabilitation. " Id., p. 6.
Acknowledging that "there is little to guide us in construing this provision," 95-ORD-7, p. 7, the Attorney General has nevertheless expressly held that "the shroud of secrecy, [mandated by KRS 610.320(3) is] aimed at protecting juveniles [and] cannot logically be extended to protect adults accused of victimizing juveniles, " and indirectly recognized that its purpose is therefore not furthered when the disputed law enforcement record relates to the juvenile victim of a crime as opposed to the juvenile offender. 93-ORD-42, p. 10. See 95-ORD-7 (records that related to suicide of two juveniles) ; 95-ORD-21 (missing person report concerning a juvenile runaway) ; 95-ORD-22 (missing person report relating to juvenile runaway allegedly involved in murder). 4
Applying this language on the facts presented in 98-ORD-185, which involved a request for the identifying information of two 6-year-old children involved in a non-fatal shooting at the home of their babysitter, this office reasoned as follows:
It remains our view that this purpose is not fostered by nondisclosure of records of law enforcement agencies concerning incidents which involve juveniles, but in the course of which no public offense was committed. We find no authority in the statutes, or elsewhere, for [the agency's] position that the legislative intent underlying KRS 610.320(3) is to protect any law enforcement record in which a juvenile's name appears so that that juvenile might avoid public scrutiny and embarrassment.
We continue to ascribe to the view that KRS 610.320(3) "operates as an absolute prohibition on the release of law enforcement records of children under the age of eighteen." 95-ORD-22, p. 2. We reiterate, for purposes of absolute clarity, that the statute does not apply "when the disputed law enforcement record relates to the juvenile victim of a crime as opposed to the juvenile who falls within the parameters of KRS 610.010 (1) [and (2)]." 98-ORD-123, p. 5.
98-ORD-185, p. 5 (emphasis added). In other words, KRS 610.320(3) does apply when the disputed law enforcement record concerns a juvenile offender, as in this case.
More recently, this office again recognized "that subsection (3) of [KRS 610.320] prohibits disclosure of all law enforcement records regarding children under the age of eighteen, subject to certain statutorily engrafted exceptions," but did not agree "that the law extends protection to a uniform citation or KYIBRS report solely because it contains the name of a juvenile. " 09-ORD-201, p. 6. Of particular significance on the facts presented, the Attorney General reiterated in 09-ORD-201 that the "shroud of secrecy" is "aimed at protecting juvenile offenders, " and "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." Id. (Original emphasis.) As the CPD correctly argued, KRS 610.320(3) contains no exception permitting the redaction of juvenile law enforcement records; accordingly, the protected information cannot simply be redacted in accordance with KRS 61.878(4) as would otherwise be required.
The law enforcement agency's reliance on KRS 610.320(3) as the basis for withholding uniform citations and KYIBRS reports containing the names of juvenile victims or witnesses could not be affirmed in 09-ORD-201; conversely, this office must conclude that the CPD properly relied upon this provision as the basis for denying access to such a report(s) concerning a juvenile offender. To hold otherwise would contravene the mandatory language of KRS 610.320(3) as well as governing precedents applying this provision. The denial is affirmed.
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.
Chris HensonSergeant Ron TrenkampAlex T. Mattingly
Footnotes
Footnotes
1 Sergeant Ron Trenkamp responded to Mr. Henson's request, which the CPD actually received on February 9, 2010, by letter dated February 19, 2010, advising him that 77 responsive pages were being disclosed. Insofar as the CPD failed to either issue a written response within three business days per KRS 61.880(1), or properly invoke KRS 61.872(5), the agency violated the Act from a procedural standpoint. No explanation for this deficiency has been offered.
2 KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
3 The Attorney General also noted in 93-ORD-42 that "KRS 610.320(3) was enacted in response to a legislative concern that juveniles would not receive a fair trial and that their changes for rehabilitation might be diminished as a result of release of law enforcement records relating to them."
4 In 95-ORD-7 and 95-ORD-21, the Attorney General held that in the absence of statutory language limiting the application of KRS 610.320(3) to living juveniles, that confidentiality provision continues to operate after the death of the juvenile.