Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in its partial denial of Jeff King's request dated October 27, 2015, for complete copies of two investigative files concerning him. For the reasons that follow, we conclude that the KSP did not violate the Open Records Act.
Mr. King is incarcerated at the Kentucky State Reformatory due to convictions for multiple offenses including first-degree sexual abuse, second-degree sodomy, second-degree rape, and incest with a minor. On December 1, 2015, 1 KSP records custodian Emily M. Perkins partially granted and partially denied Mr. King's request. In his appeal letter, he contests the denial of the following items:
. "[T]he audio recording statement of the alleged victim." KSP withheld this recording on the basis of KRS 61.878(1)(a), "as the victim is referred to so frequently that the recordings are not able to be properly redacted. "
. "[P]ages containing data transmitted through the use of a centralized intelligence database and pages from the Dept. of Community [B]ased Services, [C]hild [P]rotective Services investigation." KSP withheld the former "pursuant to KRS 17.150(4), which makes such information confidential, and 61.878(1)(l), which states that records made confidential by another Act of the General Assembly shall remain exempt from the provisions of the Open Records Act. " The Child Protective Services records were withheld "pursuant to KRS 620.050, which makes such records confidential, and 61.878(1)(l)."
Mr. King's appeal was received by this office on December 21, 2015. He argues that "it is public record whom [ sic ] the victim is in this case" and "[a]t best the alleged victim's names [ sic ] and address should be the only thing redacted. "
On January 28, Ms. Perkins elaborated on the application of KRS 61.878(1)(a) in this case:
The OAG held in 02-ORD-036 that "the City of Louisville Division of Police may properly rely on KRS 61.878(1)(a) in withholding the names and information identifying the victims of sexual offenses from incident reports requested by open records applicants. It is our opinion that the victims of these crimes share a substantial privacy interest in the nondisclosure of their identities. This privacy interest is postulated on the victims' need to avoid public exposure as they cope with the singularly traumatic physical and psychological consequences of the crimes perpetrated against them. . ."
KRS 61.878(1)(a) exempts from the Open Records Act:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy[.]
In
Cape Publications v. City of Louisville, 147 S.W.3d 731, 734 (Ky. App. 2003) (quoting
Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992), the Court of Appeals noted: "Once a protectable privacy interest is established, proper application of the Open Records Act requires a 'comparative weighing of the antagonistic interests'--the privacy interest versus the policy of openness for the public good." As the Kentucky Supreme Court has stated:
Of primary concern is the nature of the information which is the subject of the requested disclosure; whether it is the type of information about which the public would have little or no legitimate interest but which would be likely to cause serious personal embarrassment. The Court had no difficulty concluding in Board of Examiners of Psychologists that information which would have revealed the identities of persons who had been sexually victimized should not be produced.
Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co., 941 S.W.2d 469, 472 (Ky. 1997) (emphasis added). Furthermore, juvenile victims of crime "have a heightened privacy interest in records relating to crimes against them, and are thus entitled to greater protection under KRS 61.878(1)(a) than adult victims of crime generally receive." 96-ORD-115; see also
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 85 (Ky. 2013) (heightened privacy interest recognized for juvenile victims of crime) .
"At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing."
Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). The fact that Mr. King may have a personal interest in obtaining the victim's statement does not equate to a preponderant interest on the part of the general public. "It is the public's interest, and not Mr. [King's] personal interest, which must be advanced by release of the disputed records." 94-ORD-45.
As in Board of Examiners of Psychologists, supra, we find "little or no legitimate [public] interest" here in the disclosure of a sexual assault victim's recorded statement. Furthermore, "information is no less private simply because that information is available someplace." Zink, supra, at 828. Since this is a case involving criminal sexual victimization of a juvenile, we find that the substantial privacy interest of the victim in this instance outweighs the minimal public interest that would be served by disclosure of the recording. Therefore, KSP properly invoked KRS 61.878(1)(a).
The remaining issues are simpler to address. KRS 17.150(4) provides:
Centralized criminal history records are not subject to public inspection. Centralized history records mean information on individuals collected and compiled by the Justice and Public Safety Cabinet from criminal justice agencies and maintained in a central location consisting of identifiable descriptions and notations of arrests, detentions, indictments, information, or other formal criminal charges and any disposition arising therefrom, including sentencing, correctional supervision, and release. The information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any proceeding related thereto. Nothing in this subsection shall apply to documents maintained by criminal justice agencies which are the source of information collected by the Justice and Public Safety Cabinet. Criminal justice agencies shall retain the document and no official thereof shall willfully conceal or destroy any record with intent to violate the provisions of this section.
KRS 61.878(1)(l) excludes from the application of the Open Records Act:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]
"Denial 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). Accordingly, the data obtained through the centralized intelligence database referenced in KRS 17.150(4) were confidential and not subject to inspection.
Similarly, with regard to records of Child Protective Services, KRS 620.050(6)(a) provides:
Files, reports, notes, photographs, records, electronic and other communications, and working papers used or developed by a children's advocacy center in providing services under this chapter are confidential and shall not be disclosed except to the following persons:
1. Staff employed by the cabinet, law enforcement officers, and Commonwealth's and county attorneys who are directly involved in the investigation or prosecution of the case;
2. Medical and mental health professionals listed by name in a release of information signed by the guardian of the child, provided that the information shared is limited to that necessary to promote the physical or psychological health of the child or to treat the child for abuse-related symptoms;
3. The court and those persons so authorized by a court order; and
4. The external child fatality and near fatality review panel established by KRS 620.055.
Since Mr. King is not one of the persons listed in the statute, KSP properly denied him access to the records in question. We therefore find no violation of the Open Records Act.
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.
Footnotes
Footnotes
1 The record does not reflect when Mr. King's request was received by KSP.