Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Justice and Public Safety Cabinet properly denied Cindy A. Preston's December 3, 2013, request for a copy of "the radiology reports and films that resulted from the October 19, 2007, autopsy on Phil Glodo that was performed by the Kentucky Medical Examiner." The Office of the Medical Examiner, which is attached to the Justice and Public Safety Cabinet, initially denied Ms. Preston access to radiology reports and an x-ray of Mr. Glodo's skull on the basis of KRS 61.878(1)(a), but later acknowledged that no radiology report was generated. We find that the Cabinet's reliance on KRS 61.878(1)(a) to support nondisclosure of the x-ray was misplaced, and that the denial of Ms. Preston's request constituted a violation of the Open Records Act.
On appeal, Ms. Preston argued that because Mr. Glodo is dead he has no privacy rights. In support of its position, the Cabinet cited 05-ORD-075 in which the Attorney General affirmed that agency's denial of a request for autopsy photographs on the basis of KRS 61.878(1)(a). At page 8 of that decision, we applied the "comparative weighing of antagonistic interests" analysis established by the Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992), weighing the competing public interest in reviewing the autopsy photographs "to ensure that the State Medical Examiner properly executed her statutory function" against the privacy interests of the decedent's surviving family members. We held that because "the public interest was effectively promoted by release of the written autopsy reports, . . . [that interest must] yield to [the decedent's] surviving family members' privacy interest in the nondisclosure of their relative's autopsy photographs. " 05-ORD-075, p. 8. We do not believe 05-ORD-075 is controlling for the following reasons.
To begin, 05-ORD-075 involved autopsy photos and not, as here, an x-ray. Under certain circumstances, x-ray photos may be as revealing as autopsy photos. However, it is often the case, as it is in this instance, that x-ray photos reveal only the skeletal structure of a subject in a manner that is not likely to contain personally identifiable information (unless the subject suffers from an obvious deformity with which the reviewer is familiar). In contrast to autopsy photos that are personally identifiable and reveal flesh and blood details, x-rays depict osseous structure, and are more clinical in nature. Our review of the autopsy photos appended to Ms. Preston's letter of appeal, which were obtained through discovery, and the disputed x-ray, which we obtained under authority of KRS 61.880(2)(c), confirms that the x-ray is not graphic and implicates minimally, if at all, Mr. Glodo's surviving family members' privacy rights. 1 Though some x-ray photos may contain personally identifiable characteristics that implicate the privacy interests of surviving family members, that is not the case here.
Conversely, the public's interest in disclosure of the disputed x-ray in this appeal is greater than the public's interest in the disputed autopsy photos in 05-ORD-075. As noted, in 05-ORD-075 the Attorney General held that the public interest in determining whether the Medical Examiner properly executed her statutory function in performing the decedent's autopsy "was effectively promoted by release of the written autopsy reports." 05-ORD-075, p. 8. Here, the Medical Examiner acknowledges that no radiology report was generated after Mr. Glodo's head was x-rayed. The only record confirming the Medical Examiner's discharge of her statutory duty, as it relates to the x-ray of Mr. Glodo's skull where the fatal gunshot was inflicted, is the x-ray itself. Under these circumstances, the minimal privacy interests of surviving family members in that x-ray must yield to the public's interest in disclosure.
05-ORD-075, upon which the Cabinet relies, was appealed to the Franklin Circuit Court where it was reversed. Blaine J. Edmond, III, et al. v. Justice and Public Safety Cabinet , Civil Action No. 05-CI-00742 (Franklin Circuit Court Division 1). Although the court's opinion does not represent binding legal authority for the Commonwealth, it is instructive to note that the court focused on the absence of evidence "that any family members of the victim . . . have voiced any objection over the release of the autopsy photos." Id. at 3. The record in this appeal is also devoid of evidence that Mr. Glodo's surviving family members have objected to disclosure of the x-ray. 2 Although not entirely controlling on the issue of the public's right of access to autopsy photos or x-rays, proof of a heightened privacy interest supported by the surviving family members' objections to disclosure, will be considered in determining whether the public's interest must yield to the family members' privacy interest. To the extent 05-ORD-075 suggests otherwise, that open records decision is withdrawn. Because there is no proof that Mr. Glodo's family objects to disclosure of the x-ray, the x-ray itself is not graphic in nature, and no radiology report exists that promotes the public's right to know that the Medical Examiner properly discharged her duty in performing Mr. Glodo's autopsy, we find that the public's interest in disclosure of the x-ray is superior to the unsubstantiated privacy interest and that the Justice and Public Safety Cabinet violated the Open Records Act in denying Ms. Preston's request.
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:
Cindy A. PrestonDeanna F. DouthittAmy V. Barker
Footnotes
Footnotes