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 Office of the Attorney General/Department of Criminal Investigations ("DCI") violated the Open Records Act in the disposition of Lawrence Trageser's May 29, 2015, request for "any and all records reflecting the complaint(s) letter(s), interviews, investigative reports, etc., relating to a concluded investigation and criminal case so numbered 14301-0182 in Spencer County district court [which] involved Counselor James Hodge." For the reasons stated below, we find no substantive violation of the Act.
On June 2, 2015, Assistant Deputy Attorney General Mitchel T. Denham issued an initial response, stating that the investigative file was in the process of being closed and a substantive response would follow on June 11, 2015. Mr. Trageser does not appear to take issue with this initial response.
In the final response on June 11, Mr. Denham stated:
Please be advised that portions of these records have been redacted because they contain information that is exempt from public inspection pursuant to the exemptions contained in KRS 61.878(1)(a). This type of information, includes, but is not limited to, social security numbers, birthdates, addresses, telephone numbers, the disclosure of which Kentucky Courts have held may leave persons at risk for identity theft and would be a clearly unwarranted invasion of personal privacy. KRS 61.878(1)(a); Hines v. Treasury, 41 S.W.3d 872 (Ky. App. 2001); Zink v. Commonwealth, 902 S.W.2d 835 (Ky. App. 1994); Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013). 1
Mr. Trageser's appeal, received by this office on July 27, 2015, alleged "potential unwarranted exemption of documents."
In a July 30, 2015, response to the appeal, Mr. Denham reaffirmed the categorical redactions made pursuant to KRS 61.878(1)(a), stating that "the OAG/DCI redacted dates of birth, home phone numbers, social security numbers, home addresses, and other personal identifying information, " and added the following:
In addition, the OAG/DCI redacted the names and information regarding individuals which appear in the investigative file based solely by virtue of being on the same State Board of Election's "Precinct Roster" page as Mr. Hodge. These individuals were not the subject of the criminal investigation, were not even believed to be witnesses to the offense, and were not connected to the case in any way shape or form. Thus, their identities were not "related to" the James Hodge investigation, as requested by Mr. Trageser and were not responsive to the request. Regardless, the disclosure of their identities and voting records would constitute a clearly unwarranted invasion of personal privacy and redaction is warranted under the balancing test applied to KRS 61.878(1)(a) and the associated case law. The OAG/DCI did, however; provide the "Precinct Roster" showing the voting record of Mr. Hodge, the subject of the investigation.
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).
Subsequently, 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 do not understand Mr. Trageser's appeal to take issue with the redaction of home addresses, dates of birth, home telephone numbers, or social security numbers. These specific categorical redactions are clearly within the scope of the material addressed in Kentucky New Era, supra, as ordinarily constituting a "clearly unwarranted invasion of personal privacy" under KRS 61.878(1)(a). 15-ORD-093; 14-ORD-123. With regard to these four categories of redactions, we find no substantive violation of the Open Records Act. 2
As to the identities of other individuals on the page of the Precinct Roster, if they were wholly unrelated to the investigation, these could properly be redacted as being unresponsive to the request. While the better practice would have been to mention this redaction specifically in the June 11 response, we do not find a violation of the Act in this context.
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.
Footnotes
Footnotes
1 The June 11 response also asserted exemptions under the attorney-client privilege, the work product doctrine, and KRS 61.878(1)(h). Based on the response to this appeal, however, those matters no longer appear to be asserted.
2 Mr. Trageser apparently objects to the language "includes, but is not limited to," which implies an open-ended categorical redaction without specifying the categories of information encompassed in the description of personal identifying information. If any additional information was redacted, but not identified, this would constitute a procedural violation of the requirement in KRS 61.880(1) that the agency "include a statement of the specific exemption authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld." If, however, the "not limited to" phrase was meant as mere boilerplate language, it should not have been used in that manner.