Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Anthony C. Clyburn initiated this appeal by letter dated January 4, 2016, challenging the failure of the Jeffersontown Police Department (JPD) to issue a timely written response upon receipt of his July 1, 2015, request "for an opportunity to obtain copies of personnel records, recordings, videotape, correspondence, reports, disciplinary actions and disposition of same regarding any and all allegations of crimes against children by Detective Roscoe Scott," whose years of service included 1998-2008. Mr. Clyburn advised that he was a "member of the news media who has written extensively on the subject." On appeal Mr. Clyburn explained that on July 8, 2015, the JPD Records Custodian contacted him by telephone in order to clarify the scope of the request. Chief Rick Sanders called him the next day and ultimately indicated that he would consult the City Attorney. "Weeks later" Mr. Clyburn called the Records Custodian again but a written response was not provided until January 20, 2016 (in response to Mr. Clyburn's appeal).
The City did not dispute Mr. Clyburn's recitation of the procedural history in responding to his appeal. Citing the "private nature of the records," the "highly questionable veracity of his claimed status as 'a member of the news media . . . ,' and that this is a continuation of a personal vendetta dating back to 1999," the JPD argued that Mr. Clyburn's request was properly denied on the basis of KRS 61.878(1)(a), but did not include a copy of any written response that was provided to Mr. Clyburn prior to his appeal. 1 A verbal response does not satisfy the requirements of KRS 61.880(1), pursuant to which a public agency, upon receipt of a request, "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." In failing to issue a written response of any kind to Mr. Clyburn's request within three business days and either provide any existing responsive documents that were not exempt under KRS 61.878(1), or properly invoke KRS 61.872(5) if appropriate, the City violated the Act.
KRS 61.880(1) also provides that a public "agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less amount [] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996). Pursuant to KRS 61.880(2)(c), "[t]he burden of proof in sustaining the action shall rest with the agency[.]" The JPD has not satisfied this burden here.
In support of its reliance on KRS 61.878(1)(a), the JPD advised that in 1999 "Mr. Clyburn accused his then girlfriend . . . of child sexual abuse of a minor. (The minor is now an adult, and has not requested the records). The minor child was in fact Mr. Clyburn's son. . . . Mr. Clyburn filed his charge with the [JPD], and an investigation ensued." Detective Roscoe Scott, "whose records are at the heart of Mr. Clyburn's appeal," led the investigation. The City emphasized that Mr. Clyburn is asking for documents relating to Detective Scott's investigation, "ostensibly so that he can 'write a book.'" The investigation of Mr. Clyburn's then girlfriend "found no prosecutable offense." Mr. Clyburn then filed a complaint against Detective Scott with JPD on April 4, 2005, making various "unfounded allegations." The JPD noted that Mr. Clyburn was also unsuccessful in pursuing the matter with other public agencies. 2 Emphasizing that Mr. Clyburn was the biological father of the alleged victim, the JPD noted the sensitive nature of a sexual offense involving a then minor child. 3 Citing Kentucky Board of Examiners v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the JPD further asserted that disclosure of such records could not be justified "in order to serve the curiosity of purchasers in a bookstore."
Mr. Clyburn's request actually sought personnel records of a (former) public employee, and those pertaining to a public agency's investigation of allegations "of crimes against children" made against said employee. Such records are certainly of significant public interest, notwithstanding the purportedly questionable motivation of Mr. Clyburn, which is legally irrelevant. "Our analysis does not turn on the purposes for which the request for information is made or the identity of" the requester. Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994); see 06-ORD-084 (KRS 61.872(2) does not authorize public agencies to inquire into a requester's motives in seeking access to public records) ; 10-ORD-062. Rather, "the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Zink at 828. The only exception to this rule is found at KRS 61.874(4)(b), which is not implicated here. Thus, Mr. Clyburn "stands in the same shoes as any other open records requester, whatever his suspected motive in requesting records relating to [Detective Scott][.]" 07-ORD-192, p. 7.
The "unambiguous purpose of the Open Records Act is the disclosure of public records even though such disclosure 'may cause inconvenience or embarrassment to public officials or others.'" Beckham v. Board of Education of Jefferson County, 873 S.W.2d, 575, 577 (Ky. 1994), citing KRS 61.871. However, the General Assembly has mandated that certain records are not open for public inspection, including public records "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a). In Kentucky Board of Examiners, above , the Kentucky Supreme Court established the standard for determining whether a public agency has properly relied on KRS 61.878(1)(a). Recognizing the Act "exhibits a general bias favoring disclosure, " the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." Id. at 327-328. The determination of whether a public agency has properly relied upon KRS 61.878(1)(a) turns on whether the offense to personal privacy that would result from disclosure of the information outweighs the public benefit, and is an "intrinsically situational" determination that can only be made in a "specific context." Id.
The Court of Appeals refined the standard of Kentucky Board of Examiners in Zink v. Commonwealth of Kentucky, above , reasoning that if the information requested is of a "personal nature," the next question is "whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy [,]'" a determination which "entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good." Zink at 828 (citation omitted). The only relevant public interest "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . " Id. at 829.
In determining that the Department of Workers' Claims properly relied upon KRS 61.878(1)(a) in denying the requester access to personal information contained in the injury report forms that were submitted by private citizens, the Court reasoned that the "relevant public interest supporting disclosure in [that] instance [was] nominal at best," and the dissemination of unsolicited information to injured workers might serve the "broad public interest" by educating injured workers regarding their legal rights under the workers' compensation statutes, but "[could not] be said to further the principal purpose of the Open Records Act. " Id. at 829. The result in Zink hinged on the fact that disclosure of this inherently private information "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." Id. However, the same cannot be said to justify withholding, in their entirety, personnel records of a public employee, and particularly records pertaining to allegations of misconduct and the resulting investigations, though redactions of personal information are certainly permissible on the basis of KRS 61.878(1)(a).
The Kentucky Supreme Court recently expressed "no hesitation" in recognizing that "Kentucky's private citizens retain a more than de minimus interest in the confidentiality of the personally identifiable information collected from them by the state." Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 85 (Ky. 2013). Significantly, the Court rejected the practice of " blanket denials of ORA requests, i.e., the nondisclosure of an entire record or file on the grounds that some part of the record or file is exempt . . . ." 415 S.W.3d at 88 (original emphasis). The Court approved the agency's practice of "categorical redaction" as to personal information of private citizens, including victims, witnesses, and uncharged suspects, whether juvenile or adult, in addition to names of juveniles, from law enforcement records. 415 S.W.3d at 88-89. However, the agency in that case had "complied scrupulously with KRS 61.878(4) by 'making available for examination' the requested records after having separated, in its view, the excepted private information from the nonexcepted public information." 415 S.W.3d at 88. The JPD has made no such attempt here nor has the JPD identified with any relevant detail the records that are being withheld in their entirety.
Under this controlling authority, the JPD can sufficiently address the stated concern for the privacy of the alleged victim and other private citizens referenced in any responsive documents with categorical redactions of personal information, but a blanket denial is not permissible. 4 The former police officer accused of wrongdoing and ultimately exonerated was a public employee in whom the public had placed its trust and whose job performance was a matter of legitimate public interest. Accordingly, the public has a significant interest in accessing records from which it can determine whether the public agency discharged its duty to properly and thoroughly investigate any complaints that were received, including Mr. Clyburn's. See Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001); 02-ORD-231 (privacy interest of public employees disciplined for misconduct or exonerated of charges is outweighed by the public interest) . Because any existing responsive documents contain both excepted and nonexcepted material, the JPD is permitted to redact any excepted material, but is required to make any nonexcepted material available for inspection or copying after the JPD identifies the material being withheld, and then articulates, in writing, the statutory basis for withholding the excepted material per KRS 61.878(4) and KRS 61.880(1). See 08-ORD-175.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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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