Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in partially denying the March 28, 2013, request of Deborah Highland, City Editor of The Daily News , for "access to and a copy of the now-closed investigative file into the shooting death of Brandon Bradshaw." By letter directed to Ms. Highland on April 23, 2013 (after KSP had timely advised that it was "in the process of finalizing its investigation pending receipt of critical documentation from other agencies"), KSP Records Custodian Emily M. Perkins advised that she was enclosing a copy of the requested investigative file with limited information redacted pursuant to KRS 61.878(1)(a), such as dates of birth, social security numbers, home addresses and telephone numbers, and "medical records." In response to Ms. Highland's verbal inquiry regarding accessibility of the requested toxicology reports, the only records at issue on appeal, by e-mail dated April 29, 2013, Ms. Perkins reiterated that medical records, including toxicology reports, are withheld under KRS 61.878(1)(a). "For informational purposes," KSP further explained that "sometimes when drugs or alcohol are factors in a case (such as when a driver under the influence causes a crash that results in the death of another person) information, as opposed to the actual toxicology report, will be released through a Public Affairs officer." In such cases, the reports "are sometimes disclosed after the person has been charged and convicted of a crime related to the use of the substance. Since those circumstances were not present in this investigation," KSP advised, "the toxicology reports are not releasable." Arguing that KSP initially failed to adequately explain how KRS 61.878(1)(a) applies to said toxicology reports, 1 and "misuses the privacy exception" as the Attorney General has recognized that the public's interest in ensuring that "police agencies properly investigated crimes outweighs privacy interests" in certain public records, including toxicology reports, in 00-ORD-162, Ms. Highland subsequently initiated this appeal.
The question is a close one; however, the significant interest of the public in the toxicology reports at issue, based on the facts presented, is more compelling here than it was in 00-ORD-162. Our analysis must begin with the presumption of openness that informs the Open Records Act, codified at KRS 61.872, and providing that "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884." This presumption is reflected in the legislative statement of 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," and the statutory assignment of the burden of proof to public agencies resisting disclosure reflected in KRS 61.880(2)(c). See Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Company, 824 S.W.2d 324, 327 (Ky. 1992)(the Open Records Act "exhibits a general bias favoring disclosure" ). Thus, under KRS 61.870(2), records which are in the possession of a public agency, including the requested toxicology reports and those at issue in 00-ORD-162, are presumed open unless the agency satisfies its burden of proving the records are exempt from disclosure per KRS 61.878(1)(a) through (n). The shooting victim in 00-ORD-162 was at home, rather than driving on a public roadway, was unarmed, and there was no evidence in the record to suggest drugs or alcohol may have been a contributing factor in the shooting, which apparently was not random. His toxicology results were nevertheless deemed nonexempt. In addition, the privacy interests of Mr. Bradshaw's family members are less compelling here as compared to those of the surviving spouse and children, also victims of the heinous crime that was the subject of the investigation, 2 whose privacy rights were asserted in 00-ORD-162. KSP's reliance on KRS 61.878(1)(a) was therefore misplaced on these facts. The competing public interest in disclosure of records "that facilitate public oversight of law enforcement officials in the discharge of their official duty to investigate the crimes cannot be discounted." Id., p. 7.
On appeal Ms. Highland explained that the case was "officially closed on March 27, 2013 after a Warren County grand jury returned a no true bill, finding that there was not sufficient, competent evidence to charge Tommy Brown, an off-duty Warren County Sheriff's Office court security officer with any crime" in the February 26 shooting that led to Mr. Bradshaw's death. Because the shooting involved an off duty officer, the Warren County Sheriff's Office asked KSP to investigate. Mr. Bradshaw was a former constable, she advised, and "had been working as a children's theater arts educator in the time leading up to his death. Both men are well-known figures in the community." Citing 00-ORD-162, Ms. Highland challenged KSP's application of KRS 61.878(1)(a) . She further argued the circumstances that Ms. Perkins described in her April 29 e-mail were present in this investigation and that drugs or alcohol may have been "a factor in a crime." In returning a no true bill, Ms. Highland reasoned, the Grand Jury "found implicitly that this was a justifiable homicide and therefore the finding is tantamount to a conclusion that [Mr.] Bradshaw did commit a crime."
According to Ms. Highland, the investigation revealed that Mr. Brown had a Kentucky concealed carry permit while Mr. Bradshaw did not. The investigation by KSP also determined that both men were "driving erratically on a busy thoroughfare in Bowling Green during peak travel times." Mr. Brown claimed that Mr. Bradshaw "cut him off in traffic, shouted an expletive and extended his middle finger before following him into a parking lot." The "threatening behavior" that Mr. Brown described is uncharacteristic of Mr. Bradshaw according to Ms. Highland; accordingly, "potential drug and/or alcohol use may have clouded [Mr.] Bradshaw's judgment on the day of this incident and may explain [his] behavior." Ms. Highland emphasized there is "widespread public interest" regarding the events which culminated in the death of Mr. Bradshaw, noting that his family and friends held a march on March 2 in downtown Bowling Green which attracted more than 300 people and that nearly 1000 people attended Mr. Bradshaw's memorial service on March 7 at the Southern Kentucky Performing Arts Center. In closing, Ms. Highland correctly noted that in 00-ORD-162 the Attorney General held that the Barren County Sheriff's Department violated the Open Records Act in withholding the toxicology reports for the victim of a fatal shooting on the basis of KRS 61.878(1)(a) because the significant public interest outweighed the privacy interests of the victim's family members. Nothing in the response of KSP, Ms. Highland concluded, demonstrates any privacy interest that is more compelling than the public's interest in disclosure of the toxicology results in dispute.
Upon receiving notification of Ms. Highland's appeal on behalf of The Daily News from this office, Ms. Perkins supplemented the agency's response. In addressing Ms. Highland's claim regarding application of KRS 61.878(1)(a) on these facts, KSP argued that 09-ORD-156, affirmed by the Franklin Circuit Court in 09-CI-1763, was instructive. Ms. Perkins noted that in that decision, "the OAG held that, while toxicology results are subject to the personal privacy analysis under KRS 61.878(1)(a), because the subject of the chemical tests had been charged with a crime,' . . . the public interest outweighed the privacy interest of the individual subject of the report." Despite Ms. Highland's assumption that a finding by the Grand Jury that Mr. Bradshaw's death was a "justifiable homicide" is tantamount to finding that he committed a crime, Ms. Perkins argued, "the subject of the toxicology testing (Bradshaw) was not charged with any crime related to this incident." (Original emphasis.) Ms. Perkins further advised that KSP has been in contact with a representative of Mr. Bradshaw's family, "and they wish to assert their interest in the privacy of the toxicology reports." Attached to Ms. Perkins's May 17 response was a copy of the May 15 affidavit submitted by Ms. Heidi Bradshaw, the surviving spouse of Mr. Bradshaw, in which Ms. Bradshaw requested that the toxicology reports "not be released to the Bowling Green Daily News or any other media outlet making such a request," asserting that release of the reports would be an "extreme invasion" of her family's privacy and "hurtful" to her and her three small children. Ms. Perkins reiterated that KSP has released the full investigation regarding this matter, excluding only personal identifying information and medical records, including toxicology reports. Accordingly, the public "has sufficient information" to determine whether KSP has properly investigated this incident.
As the Kentucky Supreme Court has emphasized, the "unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure 'may cause inconvenience or embarrassment to public officials or others.'" Beckham v. Board of Education of Jefferson County, 873 S.W.2d, 575, 577 (Ky. 1994), citing KRS 61.871. Despite this "manifest intention to enact a disclosure statute," however, the General Assembly has mandated that certain records are not open for public inspection. Among those records excluded from application of the Act in the absence of a court order are public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a). In Kentucky Board of Examiners, the Kentucky Supreme Court established the standard by which this office must determine whether a public agency has properly relied on KRS 61.878(1)(a) as the basis for denying access to public records. Recognizing the Act "exhibits a general bias favoring disclosure, " the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. The determination of whether a public agency has properly relied upon KRS 61.878(1)(a) necessarily turns on whether the offense to personal privacy that would result from disclosure of the information contained therein outweighs the benefit to the public, and is an "intrinsically situational" determination that can only be made within a "specific context." Id. However, the "clearly unwarranted" standard "tips the scales in favor of disclosure. " 03-ORD-084, p. 4.
The public's "right to know" under the Act is premised upon the right of the public to expect its agencies to properly execute their statutory functions. Kentucky Board of Examiners at 328. Inspection of public 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." Id. Echoing this view, the Court of Appeals refined the standard of Kentucky Board of Examiners in Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994). In discussing its "mode of decision," the Court of Appeals observed that determining whether disclosure is warranted under KRS 61.878(1)(a) "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. [ Kentucky Board of Examiners ] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328." Zink at 828. In determining whether an invasion of personal privacy was "clearly unwarranted" on the facts presented in Zink , the Court emphasized that its "analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request." Id. at 828. Rather, the only relevant public interest considered "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Id. at 829.
Having engaged in a "comparative weighing of antagonistic interests," the Court determined that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying the requester access to personal information contained in the injury report forms submitted by private citizens, including marital status, number of dependents, wage rate, social security number, telephone number, and home address. In so doing, the Court reasoned that the "relevant public interest supporting disclosure in [that] instance [was] nominal at best," and the dissemination of unsolicited information to injured workers might serve the "broad public interest" by educating injured workers through dissemination of unsolicited information regarding their legal rights under the workers' compensation statutes, but "[could not] be said to further the principal purpose of the Open Records Act. " Id. at 829 (emphasis added). Accordingly, the substantial privacy interests of the injured employees in such personal information outweighed the "negligible Open Records Act related public interest in disclosure. " Id. More recently, the Court of Appeals emphasized that "bright-line rules permitting or exempting disclosure [of public records] are at odds with controlling precedent." Cape Publications v. City of Louisville, 191 S.W.3d 10, 14 (Ky. App. 2006). In Cape Publications , the Court of Appeals focused on the "case-by-case analysis required by the outstanding law on the Open Records Act, " and, in particular, KRS 61.878(1)(a), in determining that the public's interest in the performance evaluations of two Parks Department employees, one who committed a criminal act "made possible by his position in a public agency, " and the other, that employee's supervisor, outweighed the employees' privacy interests in the work-related content of their evaluations. Id.
Applying this case-by-case analysis, in 09-ORD-156 this office did find that "toxicology results are subject to the personal privacy analysis under KRS 61.878(1)(a)[,]" but concluded that KSP had not established a sufficient privacy interest in the requested toxicology report to outweigh the significant public interest in accessing such records. Id., p. 3. The Attorney General noted the lack of "authority supporting a blanket rule that toxicology reports may be withheld from public inspection as long as the charges were dismissed." Id., p. 5. In analyzing KRS 61.878(1)(a) on the facts presented in 09-ORD-156, this office found that once charges were filed against the individual whose results were requested, her expectation of privacy was concomitantly reduced. Id., p. 6. Declining to establish a "bright line" rule in all cases, the Attorney General acknowledged that existing legal authority suggested "if any bright line demarcates a heightened privacy interest, it is the line between being charged and not being charged." 3 Id. This office noted the judicial recognition that "when 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 at 828. Although Mr. Bradshaw was not convicted or charged with a crime, "it does appear that [he] 'enter[ed] on the public way, ' so that the presence or absence of intoxicating substances in [his] 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 investigating agency]." 09-ORD-156, p. 5.
More significantly, in holding that the individual had a reduced expectation of privacy in law enforcement records pertaining to charges brought against her, including toxicology reports, and that KSP failed to establish a sufficient privacy interest to justify its reliance on KRS 61.878(1)(a), this office reaffirmed 00-ORD-162 in 09-ORD-156 as follows:
In 00-ORD-162 [], 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:
00-ORD-162, p. 10. Nothing in the KSP's response would indicate that [the subject's] 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 [the requester] access to the toxicology report concerning [the subject].
09-ORD-156, p. 6 (emphasis added). The instant appeal presents no basis to depart from this reasoning; rather, the case for nondisclosure was more compelling on the facts presented in 00-ORD-162, given the particularly violent nature of the crime(s) that was perpetrated against not only the shooting victim whose toxicology reports were still deemed nonexempt, but also his family, the location of the crime (the victim's home, not a "public way" ), the fact that neither the victim nor the perpetrator was a law enforcement officer, and the lack of any indication that the victim's behavior played a role in provoking the incident or that he was under the influence of intoxicating substances.
In 00-ORD-162, the Sheriff's Department had improperly withheld a significant portion of the investigative file on the basis of KRS 61.878(1)(a), including the victim's toxicology reports. To its credit, KSP has apparently disclosed the subject investigative file with very limited exceptions, notably the requested toxicology reports. Against the relatively minimal privacy interests of Mr. Bradshaw's family in records of this nature, as opposed to graphic photographs of the victim or emotionally charged 911 calls recording the victim's reaction contemporaneous reaction, for example, such as those records that were properly withheld in 00-ORD-162, this office must weigh the competing public interest in determining "whether the public servants are indeed serving the public." Kentucky Board of Examiners at 328. Disclosure of such records, the Attorney General has recognized, "serves the principal purpose of the Act by enabling citizens to be informed as to what the police are doing in discharging their law enforcement duties." 00-ORD-162, p. 6. Recognizing the existence of these competing interests, the Attorney General held "that it is incumbent on the agency advocating nondisclosure of records relating to an individual victim to satisfy its burden of proof that the privacy interests of the victim [or the surviving family members] are superior to the public's interest in disclosure. " 00-ORD-162, p. 6. Here, the compelling public interest in ensuring that KSP properly discharged its duty to thoroughly investigate the officer involved shooting that resulted in Mr. Bradshaw's death outweighs the privacy interests asserted.
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:
Deborah HighlandEmily M. PerkinsMorgain M. Sprague
Footnotes
Footnotes
1 In responding to Ms. Highland's appeal, Ms. Perkins asserted that "results of chemical testing of human urine or blood certainly qualify as a medical record." If that characterization was unclear, "KSP will specify medical records and toxicology reports separately in future responses to all requests; however, the KSP response did explain what items were removed or redacted and provided the reason for removal." KSP asserted that its original response did not violate KRS 61.880(1). However, KRS 61.880(1) requires the custodian of records to provide " detailed and particular information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 03-ORD-045. Insofar as the original response by KSP did not specify that toxicology reports were being withheld or explain how KRS 61.878(1)(a) applied to information and records being withheld, that response was deficient; however, KSP largely remedied this error on April 29.
2 The Barren County Sheriff described the incident as follows:
In addition to Shane Smith, his wife, Cyndie Smith, and their three young children were victims of this crime. Ms. Smith was abducted from her home by Joey Sowers, leaving two of [the Smith's] children home alone with Mr. Smith's body. Mr. Sowers then took Ms. Smith to a nearby residence, committed additional crimes, and then killed himself in her presence.
00-ORD-162, p. 2.
3 Though not controlling on these parties, the circuit court expressly agreed with 09-ORD-156 in Kentucky State Police v. Travis W. Bush , No. 09-CI-01763 (Franklin Circuit Court, April 25, 2011).