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 the disposition of attorney Jason McGee's May 6, 2016, request for "a copy of records pertaining to all approved traffic safety checkpoints for Ohio County, Kentucky (Post 16) on April 2, 2016." For the reasons stated below, we find that the KSP initially violated but subsequently complied with the Act.
Mr. McGee's request was received by the agency on May 11, 2016. In its initial response dated May 16, 2016, the KSP denied the records based on KRS 17.150(2) and 61.878(1)(h), as the "information relate[d] to a matters [ sic ] pending prosecution before the Ohio District Court." In 16-ORD-095, on substantially identical facts, we found that the KSP had not met its burden of proof to sustain the denial. We attach a copy of that decision and rely upon its reasoning for our finding that the KSP's initial response was in violation of the Open Records Act.
Following the issuance of our decision in 16-ORD-095, the KSP released the records to Mr. McGee subject to certain redactions outlined in a letter from records custodian Emily M. Perkins dated June 2, 2016. The redactions include a date of birth, a Social Security number, a driver's license number, and a personal home address, pursuant to KRS 61.878(1)(a), and "information obtained through use of a centralized intelligence database" pursuant to KRS 17.150(4) as incorporated into the Open Records Act by KRS 61.878(1)(l).
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 . 15-ORD-095 (affirming the categorical redaction of Social Security numbers, personal addresses, tax identification numbers, birth dates, and driver's license numbers of private individuals and specific identities of minors and juveniles). Social Security numbers, dates of birth, driver's license numbers, and personal home addresses of private individuals have no manifest bearing on how the KSP performed its public duties, and therefore this information was properly subjected to categorical redaction under KRS 61.878(1)(a).
As for information from the centralized intelligence database, "[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 information obtained from this database.
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.