Opinion
Opinion By: Jack Conway, Attorney General; Clay A. Barkley, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police subverted the intent of the Open Records Act, short of denial of inspection, by failing to provide a legible copy of a crime scene photograph as a means of protecting the decedent's "family's right to privacy by withholding the photograph quality image." Given that "an agency is obligated to furnish a requester with legible copies of otherwise legible documents," 1 we find that KSP subverted the intent of the Act and that it must provide the requester with a legible copy of the disputed photo.
In an undated letter, Richard Schapiro requested access to "all photos connected to the case" of Bill Sparkman, a part-time census worker who diedon or about September 12, 2009, under circumstances suggesting homicide but later determined to be suicide. KSP agreed to provide him with copies of "scene photographs only," explaining that "graphic images depicting the deceased [would] not be released pursuant to KRS 61.878(1)(a) as public disclosure could irreparably harm the surviving family of the deceased. " Shortly thereafter, Mr. Schapiro initiated this appeal questioning KSP's characterization of the photograph, which was "sent to [him] as part of the Sparkman police file," as "graphic. " He noted that the photograph "shows only a torso, with the letters 'FED' scrawled upon it. There are no wounds or blood. You cannot even see the man's face." It was KSP's position that, in withholding "the photograph quality image" from Mr. Schapiro, it attempted to balance the "'public right to know' . . . and the family's right to privacy . . . ." KSP's position is legally unsupportable. This office has, on more than one occasion, stated that "what the public gets is what [the agency has] and in the format in which [the agency] has it," OAG 91-12, p. 5. To the extent that KSP determined that itwould release the photo, notwithstanding KRS 61.878(1)(a), it needed to disclose it in the electronic format it had.
Mr. Sparkman's death received nationwide attention. Because of the circumstances of his death, considerable attention was devoted to the details of the crime scene, and descriptions of the scene were widely disseminated. Photo quality copies of photographs were released to Mr. Schapiro, as well as a family investigator, depicting the scene. Only one, the photograph of Mr. Sparkman's torso, was released to Mr. Schapiro as a grainy xeroxed copy because "it was a factor that supported the conclusion of the investigation." On appeal, KSP concedes that the only circumstance supporting its decision to release the xeroxed photo, rather than a legible copy of the original photo, was the family's refusal to "accept the investigation's conclusion that his death was a result of suicide. " Further, KSP concedes that it "does not have sufficient information to confirm whether or not the surviving family has a specific objection to his disputed request . . . ."
KRS 61.872(1) mandates that "[a]ll public records shall be open forinspection by any person. . . ." In construing this provision, Kentucky's courts have declared that access to records "does not turn on the purpose for which the request . . . is made or the identity of the person making the request." Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994). Amplifying on this view, the Attorney General has observed, "[T]he exemptions of KRS 61.878(1) may be invoked according to the nature of the record, but not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. " OAG 89-76, p. 4; see also OAG 82-233 and 01-ORD-8. Having acknowledged release of a copy of the disputed photo to the Sparkman family investigator, KSP cannot withhold "the photograph quality image" from Mr. Schapiro.
The Open Records Act does not contemplate disclosure of a virtually illegible copy of the photo, and it is not within KSP's legal discretion to elect this course of action. As we have observed in past decisions, public agencies are "obligated to furnish [records requesters] with legible copies of otherwise legible documents" and cannot be saidto have fully discharged their duties under the Open Records Act until they have done so. 98-ORD-161, p. 4; citing 93-ORD-46, p. 3 (holding that "production of records in a format which renders them inaccessible, at least as to the person requesting them, constitutes a subversion of the law"); see also OAG 90-50; 99-ORD-190; compare 03-ORD-124. Accordingly, we find that the Kentucky State Police subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), by failing to provide Mr. Schapiro with a "photograph quality image" of the disputed record.
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:
Rich SchapiroEmily M. PerkinsMorgain M. Sprague
Footnotes
Footnotes