Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Covington Police Service violated the Open Records Act in the disposition of Chris Henson's request dated February 3, 2014, for copies of certain offense reports. For the reasons stated below, we find that a procedural violation occurred.
Mr. Henson's February 3 letter, in pertinent part, stated as follows:
I request full and complete copies of "all" police offense reports that was [ sic ] written up by a patrolman after responding to a troble [ sic ] call. The reports that I seek is [ sic ] the reports that is [ sic ] initually [ sic ] written up that starts an investigation. I seek "all" the reports from the each [ sic ] address listed below. (Each address). I need the reports from the time period of: January 2010 thru February 3, 2013.
There followed a list of twenty addresses. Although he did not provide his business address, Mr. Henson stated that he had a "principal place of business outside of Kenton County" and therefore he asked for the records to be mailed to his home address (in Covington) pursuant to KRS 61.872(3)(b).
On February 18, 2014, 1 records custodian Michelle Robinson-Wilson, apparently overlooking Mr. Henson's comment about his principal place of business, responded:
You may, since you reside in Kenton County, inspect the aforementioned records during our business hours, upon making an appointment to do so, prior to the copying of the requested records, as outlined in KRS 61.872(3)(a) and (b). Once you have inspected and indicated which records you want copied and after I have received payment for the records, I will provide a copy of said records to you.
Furthermore, there are two previous requests, made by you, in 2012, for which we have yet to receive payment (one request from 10/31/2012 in the amount of $ 3.60 and a second request from 11/5/2012 in the amount of $ 1.30). You may remit payment for these prior requests at the time you come to inspect the aforementioned records and these prior requests will be provided to you.
Acceptable methods of payment for records include cash, check, or money order. Our office is open Monday-Friday, 8 a.m.-4:00 p.m. We are closed on most federal holidays. Please contact me at your convenience to schedule an appointment to view the records in question, so I can ensure someone will be available to assist you with this request.
Mr. Henson appealed to the Attorney General by letter dated February 23, 2014, on grounds that he was entitled to receive the records by mail because he maintained a principal place of business outside Kenton County.
KRS 61.872(3) provides, in relevant part, as follows:
A person may inspect the public records:
(a) During the regular office hours of the public agency; or
(b) By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
Assuming that Mr. Henson does maintain a principal place of business outside Kenton County, he should have been entitled to receive the records by mail pursuant to KRS 61.872(3)(b) upon his payment of any postage and reasonable copying charges. On March 4, 2014, Assistant City Solicitor Bryce C. Rhoades responded to this appeal, stating:
First, the City seriously questions whether Mr. Henson has a principal place of business outside Kenton County, since the mailing address he provided is not only within Kenton County, but within the City of Covington and an approximate six-minute walk to the Covington Police Department. However, the Covington Police Department has complied with Mr. Henson's request and has mailed the requested records to him.
Mr. Henson is correct that the City failed to respond to his request within three days required by KRS 61.872(5).
In light of this admission, we find that the City committed a procedural violation of the Open Records Act by not mailing its response within three days, excluding weekends and legal holidays, pursuant to KRS 61.880(1) and KRS 61.872(5).
With regard to the City's actually providing the records, a letter to Mr. Henson from Ms. Robinson-Wilson dated March 4, 2014, states:
Regarding your open records appeal, which I received on March 3, there are eighty-seven (87) pages responsive to your request ?
?
Information redacted and/or withheld, including dates of birth, social security numbers, phone numbers, and addresses of victims and witnesses, is pursuant to KRS 61.878(1)(a): public records containing information of a personal nature where [ sic ] the public disclosure of which would constitute a clearly unwarranted invasion of personal privacy are exempt from the provisions of the Kentucky Open Records Act.
In addition, there is one (1) report that is a juvenile criminal report in which the perpetrators of the public offenses are under the age of 18. This report is exempt from release under open records. KRS 61.878(1)(l) exempts from the mandatory disclosure provisions of the Open Records Law "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." This provision operates in tandem with KRS 610.320(3): All law enforcement records regarding children who have not reached their eighteenth birthday shall not be opened to scrutiny by the public.
There is a $ 0.10 charge per copied page. You will need to remit payment in the amount of $ 8.70 for the provided records before they can be released. Postage for this request will be $ 5.80. Additionally, there are two previous requests for which we have not received payment. The first request, from 10/31/2012, incurred a cost of $ 3.60 for 36 pages of records, and the second, from 11/5/2012, incurred a cost of $ 1.30. The total amount due for records and postage will be $ 19.40. Once I have received your payment, I will place the copies in the mail to you.
(Emphasis omitted.) Therefore, as of March 4, the records had not in fact been mailed to Mr. Henson.
A follow-up letter from Ms. Robinson-Wilson dated March 17, 2014, indicated that payment had been received from Mr. Henson on March 12, 2014, in the amount of $ 19.80, and that the overpayment of 40 cents was being sent to Mr. Henson in the form of a check. A letter to this office from Mr. Henson, bearing the same date of March 17, 2014, stated that he had not yet received the records. For purposes of this appeal, we will assume that the records and Mr. Henson's letter crossed in the mail, so the issue at this time is the propriety of the redactions made by the Covington Police Service as outlined in the March 4 letter.
KRS 61.878(1)(a) excludes from the application of the Open Records Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " This language "reflects a public interest in privacy, acknowledging that personal privacy is of legitimate concern and worthy of protection from invasion by unwarranted public scrutiny, " while the Open Records Act as a whole "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency.
Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). This necessitates a "comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. [T]he question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context." Id. at 327-28.
The public interest in open records has been analyzed as follows by the Kentucky Court of Appeals:
At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing. That purpose is not fostered however by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct.
Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). In Zink, the privacy interest of injured workers in their home addresses, telephone numbers, and Social Security numbers was found to outweigh the interest of an attorney seeking the information for marketing purposes where disclosure "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny. " 902 S.W.2d at 829.
In 12-ORD-227, we upheld the redaction on privacy grounds of personal identifying information, including addresses and Social Security numbers, of individuals involved in a police investigation who had not been charged with a crime. This ruling applied to the suspect as well as the witnesses, despite the substantial public interest of a newspaper investigating possible misconduct by a public official. In this case, there is nothing in the record to indicate that any person mentioned in the police reports in question was charged with a crime, nor is there any basis to find that Mr. Henson's interest in disclosure of the personal identifying information would serve the purposes of the Open Records Act more substantially than that of the newspaper in 12-ORD-227.
Similarly, in
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (2013), the Supreme Court of Kentucky found that "[p]rivate citizens ? have a compelling interest in the privacy of law enforcement records pertaining to them." "To implicate an individual's privacy interest, ? the adverse repercussions of public disclosure need not be severe." Id. On the other hand, "any private interest the requester may have in the information is irrelevant." Id. at 85. In Kentucky New Era, the newspaper was seeking address, telephone, Social Security numbers, and other identifying information on crime victims, witnesses, and uncharged suspects, purportedly in the interest of assuring the public that the police department was "providing equal protection to all parts of the community." Id. at 86. While the Court found this interest legitimate, it did not agree "that that interest can only be vindicated by sacrificing the privacy interests of all those with whom the police come in contact." Id. at 86-87. Therefore, the identifying information was properly withheld.
We find nothing to distinguish this case from the result in the Kentucky New Era case. Accordingly, we find that this identifying information was permissibly redacted under KRS 61.878(1)(a).
As for the juvenile record withheld pursuant to KRS 610.320(3), that statute makes confidential "[a]ll law enforcement and court records regarding children who have not reached their eighteenth birthday" and is incorporated into the Open Records Act by KRS 61.878(1)(l). Such records, in the case of a juvenile perpetrator, must be withheld in their entirety as opposed to merely having certain information redacted. 10-ORD-066. We therefore find no substantive violation of the Act in the Covington Police Service's ultimate disposition of Mr. Henson's request. The initial refusal to provide the records by mail within three business days was a procedural violation of KRS 61.872(3) and (5) and KRS 61.880(1).
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:
Mr. Chris HensonMs. Michelle Robinson-WilsonBryce C. Rhoades, Esq.
Footnotes
Footnotes
1 Mr. Henson complains that the agency's initial response was untimely because it was dated February 18, 2014, the third business day after receipt of his request, but postmarked February 20, 2014. For the reasons stated below, we find the response untimely.