Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying Kentucky New Era Staff Reporter Kevin Hoffman's February 9, 2010, request for "[a]ll initial offense reports related to robbery or burglary complaints or arrests referenced in the attached press release [regarding complaints in the Amish/Mennonite Communities of Christian and Todd Counties]." In requesting the reports, Mr. Hoffman noted that in 09-ORD-205 the Attorney General determined that a "UOR-1" (Initial Page of the KYIBRS Report) is the functional equivalent of the "initial offense report" to which the public is entitled. Although this assertion is generally accurate, KSP ultimately withheld the responsive UOR-1 on the basis of KRS 610.320(3), pursuant to which juvenile law enforcement records are confidential. 1 Inasmuch as the record establishes that the subject investigation "involves both an adult and juvenile suspects," the instant appeal is factually distinguishable from prior decisions upholding denials per KRS 610.320(3); accordingly, this office agrees that all portions of the Report identifying juvenile suspects were properly withheld on the basis of KRS 610.320(3), but finds that KSP must disclose that section of the report identifying the adult suspect, which is not a juvenile law enforcement record, in accordance with KRS 61.878(4). 2
By letter dated February 16, 2010, Emily M. Perkins, Official Custodian of Records for KSP, advised Mr. Hoffman "that all incidents are being investigated in one case, which was opened on 2/9/10. The Troopers have 10 days in which to gather information and turn in the KYIBRS report, and that report will not [be] turned in until 2/19/10." Accordingly, KSP indicated that "the records should be mailed or faxed" to Mr. Hoffman on or before Tuesday, February 23, 2010. In his March 11, 2010, appeal, Mr. Hoffman quoted KRS 61.880(1), noting that he called to verify receipt of his request, and that he received a telephone call from Ms. Perkins on February 26, during which Ms. Perkins advised him that "the officer was late sending the reports, but she hoped they would arrive in her office by March 1." Mr. Hoffman had not received any documents when he initiated this appeal.
Upon receiving notification of Mr. Hoffman's appeal from this office, Roger G. Wright, Assistant General Counsel, responded on behalf of KSP, advising "that the documents he seeks are part of a pending criminal investigation which involves both an adult and juvenile suspects, and the UOR-1 is designated 'Juvenile. ' KRS 610.320(3) specifically exempts juvenile law enforcement records from disclosure, and there is no required or approved method for redacting juvenile law enforcement records." Mr. Wright further noted that "KRS 610.990 makes intentional violations of Chapter 610 a Class B misdemeanor." In his view, 09-ORD-205 therefore "has no application to this matter as there is no exemption from Chapter 610 for Initial Offense reports involving juvenile suspects." Mr. Wright apologized for the procedural delay that occurred in processing Mr. Hoffman's request "due to the time involved in receiving and reviewing the contested KYIBRS Report." 3
In reply, Mr. Hoffman argued that "involvement by those under the age of 18 does not permit [KSP] to withhold all reports." Relying upon 09-ORD-201 (holding that agency did not satisfy its burden of proof in withholding in their entirety uniform citations and KYIBRS reports merely because they identified juvenile victims and witnesses ), 93-ORD-42 (holding that information relating to juvenile victims could not be redacted under KRS 610.320(3) but did fall within KRS 61.878(1)(a)), and KRS 61.878(4), Mr. Hoffman further asserted that redaction of "identifying factors of juvenile suspects is an acceptable resolution." 4 Mr. Wright countered that review of 09-ORD-201 "confirms that discussion contained therein concerns the redaction of the names of juvenile victims or witnesses from law enforcement records - not suspects. As such, 09-ORD-201 has not application to this matter." In his view, the prior decision that is most on point is 95-ORD-7 (rejecting the argument that protection of KRS 610.320(3) ends at death), which upheld a denial of access to law enforcement records identifying two juveniles who committed suicide. "Without clear judicial or statutory guidance," Mr. Wright noted, "disclosure of juvenile law enforcement records would potentially expose the record custodian to prosecution." Finally, Mr. Wright does not believe that KSP is required to further justify its withholding of the records per KRS 61.878(1)(h) given that "juvenile records cannot be disclosed even when judicial proceedings are complete." 5
Unable to resolve the question presented without additional information, this undersigned counsel asked KSP, in accordance with KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, to provide this office with a copy of the KYIBRS Report in dispute for in camera review. KSP promptly complied after masking all information related to the juvenile suspects and much of the information related to the adult suspect/offender and the victim. Although this office is not permitted to disclose the content of the Report, a careful review confirms that most, but not all of the information contained therein falls within the parameters of KRS 610.320(3).
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." However, in construing legislative enactments, the Attorney General must also presume "that the legislature did not intend an absurd result."
Commonwealth of Kentucky, Central State Hospital v. Gray, 880 S.W.2d 557, 559 (1994). Our analysis is necessarily guided, not only by these fundamental principles, but also the statement of legislative policy codified at KRS 61.871, declaring "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.) 6 As indicated, this confidentiality provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
In
F.T.P. v. Courier-Journal and Louisville Times Co., 774 S.W.2d 444, 446 (Ky. 1989), the Kentucky Supreme Court observed:
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." 7 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). 8 In 98-ORD-185, this office reiterated, "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)].'" Id., p. 5 quoting 98-ORD-123, p. 5.
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. In that decision, the Attorney General again reiterated 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 recognized as much in past 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.) See also 10-ORD-066. It stands to reason that nondisclosure of records identifying adult suspects/offenders would not further this purpose. Our holding today is but a logical application of these decisions applying KRS 610.320(3), none of which involved law enforcement records identifying both adult and juvenile suspect(s)/offenders.
A review of the foregoing line of decisions confirms that KRS 610.320(3) is designed to protect only juvenile offenders and, therefore, applies only to juvenile law enforcement and court records. Because this appeal involves a KYIBRS Report identifying one adult suspect, in addition to multiple juvenile suspects, the Report cannot, in its entirety, be properly characterized as a juvenile law enforcement record simply because the investigations have been consolidated. Rather, the Report is a juvenile law enforcement record only to the extent it relates to juvenile suspects/offenders. To hold otherwise would not further the purpose of KRS 610.320(3), but would instead have the "absurd result" or unintended consequence of protecting adult suspects/offenders. Inasmuch as the law enforcement records being sought in the prior decisions applying KRS 610.320(3) did not identify adult suspects, and the records clearly related only to juveniles, the instant appeal is factually distinguishable in this critical respect. Although KSP is required to withhold any juvenile law enforcement record, the fact KSP will have to "separate confidential documents from nonconfidential documents [cannot] serve as a basis for denying a request under KRS 61.872(6)." 00-ORD-180, p. 7. To the contrary, "the presence of some exempt information in the . . . [KYIBRS Report] does not relieve [KSP] of its obligation to provide all nonexempt information." 97-ORD-6, p. 4. See 99-ORD-209.
Pursuant to KRS 61.878(4):
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.
"[Because] the reports which [Mr. Hoffman] requests access to contain both exempt and nonexempt information, [KSP] may delete the exempt [juvenile] information, after stating, in writing, the statutory basis for withholding that information [KRS 610.320(3)]." 97-ORD-6, p. 3. Said another way, "[t]he alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." OAG 81-198, p. 4; 97-ORD-6, p. 3.
More recently, in
Department of Corrections v. Chestnut, 250 S.W.3d 655, 665 (Ky. 2008), the Kentucky Supreme Court determined, in relevant part, that the "winnowing process required of the [agency]," to separate excepted materials and make nonexcepted materials available, did not "rise to the level of an unreasonable burden under KRS 61.872(6)," inasmuch as this is an existing statutory obligation under KRS 61.878(4). Nor did the agency's "method of organizing its files . . ." Id. at 666. In sum, the Court held that a public agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request." Id., citing KRS 61.8715 (stating that "to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes"). Although KSP has not done so directly here, it has implicitly relied on the fact excepted material is commingled with nonexcepted material in arguing that the whole KYIBRS Report is marked "Juvenile, " and therefore must be withheld; however, such a marking is not determinative standing alone nor does all of the actual content fall within this category. For all of these reasons, the Attorney General must conclude that KSP improperly relied on KRS 610.320(3) in denying Mr. Hoffman access to the subject KYIBRS Report in its entirety, and must produce that limited portion of the Report identifying the adult suspect/offender. 9
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.
Kevin HoffmanEmily M. PerkinsRoger G. Wright
Footnotes
Footnotes
1 KRS 610.320(3) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
2 Pursuant to KRS 61.878(4): "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 inspection."
3 Given that both parties are clearly familiar with governing law relative to application of KRS 61.880(1), that KSP had a legitimate basis for the initial delay of ten days, and that KSP has acknowledged that further delay occurred in violation of KRS 61.880(1), this office will not belabor the issue.
4 Although Mr. Hoffman argued that KSP has not satisfied its burden of proof relative to KRS 61.878(1)(h), KSP did not rely upon this exception initially or in response to his appeal; consideration of this argument is therefore unnecessary.
5 Mr. Hoffman subsequently asserted that "Mr. Wright's argument that disclosure of such records would create harm is nullified by the fact that these individuals are being charged as adults and their names are now listed on court dockets and will be hanging in plain view on the walls of the Christian County Justice Center." However, this information does not alter the relevant analysis because this office is charged with assessing the propriety of the agency's response under the circumstances that existed at the time of the request.
6 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.
7 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."
8 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.
9 In addition, this office has rejected blanket policies of withholding categories of information relative to suspects, witnesses or victims from law enforcement records on the basis of KRS 61.878(1)(a), holding in 04-ORD-188, for example, 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. " A narrow exception has been recognized for victims of sexual offenses identified at KRS Chapter 510. This office makes no finding here given that KSP withheld the Report in its entirety on the basis of KRS 610.320(3) and issues regarding specific redactions are thus not ripe for review.
In sum, with the exceptions of social security numbers, which are exempt per Zink v. Commonwealth, Department of Workers' Claims, 902 S.W.2d 825, 828 (Ky. App. 1994), and the protected information regarding juvenile offenders, KSP must produce an unredacted copy of the KYIBRS Report unless the agency can satisfy its burden of proof under KRS 61.880(2)(c) by invoking one of the statutory exceptions codified at KRS 61.878(1) and explaining how it applies.