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 Louisville Metro Police Department ("LMPD") violated the Open Records Act in the disposition of attorney David Murrell's February 17, 2015, request to inspect records pertaining to a 1994 homicide case. For the reasons stated below, we find no violation of the Act.
Mr. Murrell's February 17 request, apparently sent through an electronic form provided by LMPD, described the records as follows:
Any and all records related to the murder and robbery of a cab driver by the name of Roy Danner on or about September 29, 1994, including but not limited to: reports, notes, witness and suspect interviews both written and recorded, lab reports, lie detector tests and results, correspondence and any and all information pertaining to and/or identifying Boris Williams, DOB [omitted] as one of the individuals responsible for the aforementioned murder and robbery. This request shall include all materials provided to the Jefferson County Commonwealth Attorney for purposes of a prosecution of Boris Williams, Arick Williams and Charles Lewis in Jefferson Circuit Court case no. 95 CR 00512, but shall also include documents and recordings which were not provided to the Commonwealth as part of the investigation/prosecution process.
On the same day, paralegal Lydia King replied on behalf of LMPD:
We will search for the file. Once archives has located the file, the file will be reviewed and determined whether any redactions and/or exemptions may be applicable in accordance with the Kentucky Open Records Act. Thus, consistent with KRS 61.872(5), we expect to be able to provide copies of all nonexempt records and a detailed list of any exemptions in whole or in part that may be applicable by close of business March 16, 2015. If the records become available before then, I will forward them to you.
On March 12, 2015, Ms. King issued a follow-up e-mail to Mr. Murrell, indicating that LMPD would "have to extend the anticipated delivery date to April 13, 2015" because for unspecified reasons the file had not yet been "located by archives. " Mr. Murrell appealed to the Attorney General on March 13, 2015, on grounds that "[t]he delay appears unreasonable." 1
In 99-ORD-26, we observed that "a determination of what is a 'reasonable time' for inspection turns on the particular facts presented.'" KRS 61.872(5) provides: If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
(Emphasis added.) The initial response from LMPD was substantially in compliance with this requirement, as it referred to the need to retrieve the file from archives. The March 12 notification, however, did not provide an explanation for why the file had not yet been obtained. While an explanation for the additional delay might well exist, no explanation was supplied to Mr. Murrell. Therefore, we find that LMPD's March 12 notification failed to comply with KRS 61.872(5).
On March 27, 2015, LMPD mailed Mr. Murrell a compact disc containing 456 pages from the homicide file. In the cover letter, Ms. King stated:
Redactions of social security numbers, dates of birth, addresses and phone numbers appear [ sic ] in protection of personal privacy pursuant to KRS 61.878(1)(a). There are 32 pages being withheld, which consist of polygraph test results and NCIC records pursuant to KRS 61.878(1)(a), 93-ORD-124, OAG 90-144 and 86-39.
She also advised that 18 cassette tapes of interviews were available for Mr. Murrell to listen to, and transcripts were included on the CD. The remaining issue is the propriety of the redactions.
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
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 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.
The Court in Kentucky New Era determined that the City of Hopkinsville's redaction policy could be
referred to as a "categorical" one. The City has determined with respect to a particular, recurring class of information -- information identifying private citizens in its police reports -- the privacy/ public-interest balancing so characteristically tips in one direction -- privacy -- that it is appropriate to withhold, categorically, information in that class."
Id. at 88. With regard to "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption, " the Court held, "the agency need not undertake an ad hoc analysis of the exemption's application to such information in each instance, but may apply a categorical rule." Id. at 89. With regard to the types of information at issue in Kentucky New Era, the Court found that the privacy interest "will almost always be substantial, and the public's interest in disclosure rarely so." Id . Therefore, the categorical redaction of this identifying information was upheld.
We find nothing to distinguish the redactions of personal information in this case from the result in Kentucky New Era . Cf . 14-ORD-123 (affirming the categorical redaction of home addresses and birth dates of private individuals from records pertaining to a certain dog in the care of Louisville Metro Animal Services). Social security numbers, dates of birth, and addresses and phone numbers of private individuals have no manifest bearing on how LMPD performed its public duties, and therefore this information was properly subjected to categorical redaction under KRS 61.878(1)(a).
Polygraph tests and polygraph examiners' reports may also be withheld from public inspection under KRS 61.878(1)(a) (personal privacy) , as well as KRS 61.872(6) (unreasonable burden) . See 04-ORD-245 (copy attached). While a partial exception exists when the subject of the polygraph exam is the one requesting the records, it has not been made clear whether Boris Williams is a subject of a withheld polygraph test in this file. If he is the subject, and if Mr. Murrell is making the request on Mr. Williams' behalf, the privacy interest under KRS 61.878(1)(a) would not apply. 93-ORD-124. In that case, LMPD would be required to release those portions of the record which would not "implicate release of confidential tactics, techniques and procedures that would be at risk" if the full record were disclosed. 08-ORD-125.
As for National Crime Information Center (NCIC) records, "[d]enial of access to centralized criminal history records maintained by KSP in the NCIC database has been approved in a series of open records decisions dating back to 1976." 06-ORD-128 ( see decisions cited therein). This is pursuant to KRS 17.150(4), which declares that "[c]entralized criminal history records are not subject to public inspection, " and is incorporated into the Open Records Act by operation of KRS 61.878(1)(l). We find no error in the withholding of these records.
In conclusion, we find a procedural violation of KRS 61.872(5) due to the lack of detailed explanation for the extended delay in retrieving the requested file from archives. Substantively, we find no violation of the Open Records Act, except to the extent that LMPD may have withheld polygraph records on Mr. Murrell's client with knowledge that he was requesting them on his client's behalf. In that instance, LMPD would have been obliged to disclose those records, except for any portions that would create an unreasonable burden under KRS 61.872(6) if released.
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.
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Distributed to:
David Murrell, Esq.Sarah Stewart Ashburner, Esq.Ms. Lydia King
Footnotes
Footnotes
1 In his letter of appeal, Mr. Murrell mentions that he is Boris Williams' attorney.