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 Spencer County Sheriff's Office properly relied on KRS 61.878(1)(a) in partially denying Lawrence Trageser's June 17, 2015, request for "any and all records reflecting the death investigation of Magistrate Brian R. Bayers['] infant son." For the reasons that follow, we conclude that the Sheriff's Office did not substantively violate the Open Records Act.
Mr. Trageser hand-delivered his June 17 request to Deputy Sharon Thomas, who conveyed it to Major Carl Reesor that same day. On June 19, 2015, Major Reesor sent Mr. Trageser a letter informing him that the records were "read[y] for review," except for "scene photographs" and "autopsy photographs, " 1 omitted for the following reason:
The disclosure of said photographs would clearly constitute an unwarranted invasion of personal privacy and serve no public interest. The family has requested in writing that the photographs not be released as it would cause a tremendous hardship and further traumatize the family. KRS 61.878(1)(a); Hines v. Treasury, 41 S.W.3d 872 (Ky. App. 2001); Zink v. Commonwealth, 902 S.W.2d 825 (Ky. App. 1994).
Mr. Trageser's appeal was received in this office on July 24, 2015. He alleged that "no documented letter or notice was issued and or received pertaining to this request" and "NO explanation was or has been provided as to [the photographs'] absence or exemption. " (Emphasis in original.)
In a response received on August 5, 2015, Major Reesor reiterated the arguments made in the June 19 letter and added that "Mr. Trageser was provided all preliminary reports and the accident reconstruction reports." Major Reesor provided a copy of the June 19 letter, upon which Mr. Trageser has not commented.
In a reply received August 10, 2015, Mr. Trageser acknowledges "that case law support exempting some investigation files, specifically pictures of deceased family members, because of privacy concerns," but he argues that the public interest is heightened in this case because Magistrate Bayers, who was driving the truck that caused the death, is a public official and Mr. Trageser has questions relating to whether proper procedures were followed by the sheriff's office, the coroner, and EMS employees at the scene of the accident. He therefore argues that the photographs taken at the scene should be released.
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). Meanwhile, it is well established that family members possess a strong privacy interest with regard to photographs of a death scene.
In 05-ORD-075, we adopted the Supreme Court's opinion in National Archives and Records Administration v. Favish, 541 U.S. 157 (2004), which "recogniz[ed] that the surviving family members' right to personal privacy with respect to a close relative's death scene photographs is generally superior to the public's interest in disclosure of those photographs. " In footnote 5 of that decision, we stated that this privacy interest is strengthened where the family members have "requested that the photographs not be disclosed." We attach a copy of 05-ORD-075, which surveys the privacy law in this area, and incorporate the reasoning of that decision in our analysis.
The fatality investigation at issue in this appeal represents a tragic situation in which an eighteen-month-old child was accidentally backed over at his residence by a vehicle driven by his father. Any photographic images of this accident scene would be, in the words of 00-ORD-162, "particularly sensitive records warrant[ing] protection under KRS 61.878(1)(a)." This strongly substantiated privacy interest is further reinforced by the family's express request that the photographs not be released.
The public interest in disclosure, while it does exist in this case, does not outweigh this heightened privacy interest in the photographs. While Mr. Trageser raises the possibility that the public agencies might not have properly investigated the death because the vehicle was driven by a public official, there is nothing in the record to indicate that any member of the public besides Mr. Trageser has questioned the integrity of the investigation.
We find that the strong privacy interest attaching to the death scene photographs outweighs the factors in favor of disclosure, as the records already disclosed by the sheriff's office adequately satisfy the public's interest in ensuring that the investigating authorities properly discharged their duties. Public disclosure of the photographs would thus constitute a clearly unwarranted invasion of the personal privacy of the child's surviving family members. Therefore, we find no violation of the Open Records Act in the application of KRS 61.878(1)(a).
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 proceedings.
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