Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Kentucky Open Records Act in denying the requests of Kathy Harris for a copy of the body-worn camera ("bodycam" ) video of the shooting death of her son, Joseph R. Harris, on March 15, 2016, in Logan County, Kentucky. On July 19, 2016, KSP agreed to provide Ms. Harris with a copy of the investigation regarding Case No. 03-16-0118 upon receipt of payment (with limited redactions not challenged here), but specifically withheld the video in its entirety on the basis of KRS 61.878(1)(a) because the "videos that recorded the incident contain extremely graphic images," public disclosure of which "could irreparably harm the surviving shooting victims as well as the surviving family of the deceased. " Peter Gray-Whiteley, Ms. Harris' attorney, replied in a letter dated August 3, 2016, asserting that "there was one shooting victim only and Ms. Harris is his mother; arguendo , there is no basis to claim any risk of harm even if an 'exemption' claim were colorable, and Ms. Harris waives any 'risk of harm. '" Mr. Whiteley further asserted, on behalf of Ms. Harris, that her deceased son's privacy interest "is moot. 1 To the extent that information is being exempted by you and it relates to Ms. Harris' son, the KRS 61.878(1)(a) exemption does not apply." KSP replied in a letter dated August 12, 2016, noting that Ms. Harris' son " was not the only shooting victim in the investigation, whose privacy interest is of concern." 2 (Original emphasis.)
Upon receiving notification of Ms. Harris' appeal from this office, Official Custodian of Records Emily M. Perkins provided the following background regarding the circumstances that culminated in Mr. Harris' death:
Joseph Harris was involved in a romantic relationship with a woman named Amanda Harper. Apparently, Ms. Harper ended the relationship. Mr. Harris approached Ms. Harper's vehicle as she was in line at the drive through of the local McDonald's restaurant, at which time he shot Ms. Harper in an apparent attempt to murder her. Ms. Harper rapidly drove away from the scene of the shooting, striking multiple objects and vehicles. Ms. Harper was wounded by the gunshots but survived the attack. Mr. Harris subsequently left the McDonald's restaurant on foot and was confronted by law enforcement officers employed by the Russellville Police Department ["RPD"]. A shootout occurred and a local shop owner, Mr. Vanna Krang, was also struck and wounded by gunfire, but survived the ordeal. It is unknown to the undersigned if Mr. Krang was struck by gunfire from Mr. Harris or the [RPD] officers. Mr. Harris died as a result of the shooting.
The body-cam videos in question do not capture footage of the shootings of Ms. Harper or Mr. Krang; however, they contain, in graphic detail, the shooting of Mr. Harris including images of Mr. Harris in a deceased state and may cause emotional distress to any viewer. The video, if released from this office in a public forum, could be further disclosed by the recipient. Should the images be publicly released, it could result in further harm to the surviving shooting [victims], Ms. Harper and Mr. Krang, by forcing them to recall a severe physical and emotional trauma.
In
Kentucky Board of Examiners v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Kentucky Supreme Court established the standard for determining whether a public agency has properly relied upon KRS 61.878(1)(a) in denying access to public records. 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. See
Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006)(holding that "bright-line rules permitting or exempting disclosure are at odds with controlling precedent" and "case-by-case analysis" is required); compare
Kentucky New Era v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013)(reaffirming that ORA forbids "blanket" denials of but characterizing redaction policy of city as "categorical" and thus affirming its withholding of contact information, social security numbers, etc . of victims, witnesses, and uncharged suspects appearing in police department's arrest/ incident reports).
The Court of Appeals refined the standard of
Kentucky Board of Examiners in Zink v. Commonwealth of Kentucky, 902 S.W.2d 825, 828 (Ky. App. 1994), 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. "Our analysis does not turn on the purposes for which the request for information is made or the identity of" the requester. Zink at 828; 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." 3 Zink at 828. Thus, Ms. Harris "stands in the same shoes as any other open records requester, whatever" her intended purpose in requesting the video. 07-ORD-192, p. 7. As explained below, however, the fact that Ms. Harris, the mother of the perpetrator/ deceased shooting victim whose body is visible on the subject video, has expressly waived her privacy interest under KRS 61.878(1)(a), is a critical factor in the analysis, particularly since neither Ms. Harper nor Mr. Krang, the other victims, whose identities are public knowledge, is visible nor is the shooting of either of those individuals captured on the video.
KSP has not cited nor has this office independently located any prior Open Records Decision specifically addressing the application of KRS 61.878(1)(a) to bodycam video footage. However, this office is not without guidance in resolving the question presented; a review of the analysis under KRS 61.878(1)(a) when records containing graphic images of deceased individuals have been sought, and the privacy rights of surviving family members have been similarly implicated, provides useful insight under the circumstances presented here. In 14-ORD-090, for example, this office was asked to determine whether the Justice and Public Safety Cabinet ("Cabinet") violated the Act in denying a request for the "radiology reports and films, toxicology report, diagrams, photographs, or detailed records of procedures completed for the autopsy [.]" The Cabinet, like KSP here, relied heavily on a general policy or practice of protecting the privacy rights of the victim's family in support of its reliance on KRS 61.878(1)(a), citing 05-ORD-075 (affirming the agency's denial of a request for autopsy photographs on the basis of KRS 61.878(1)(a)). 4 This office concluded in 14-ORD-090 that the Cabinet had not satisfied its burden of justifying the denial on the basis of KRS 61.878(1)(a).
In determining that 05-ORD-075 was not controlling, this office reasoned as follows beginning on page 4 of 14-ORD-090:
In 00-ORD-162, the Attorney General was presented with "legitimate reasons" for approving nondisclosure of records relating to and containing images of a deceased person under authority of KRS 61.878(1)(a) and in deference to the privacy interests of the victim's surviving family members. Citing National Archives and Records Administration v. Favish, 541 U.S. 157 (2004) (affirming privacy right of surviving family members in photos taken at the scene of an apparent suicide) ; New York Times Company v. National Aeronautics and Space Administration, 782 F.Supp. 628 (D.C. Cir. 1991) (recognizing privacy interests of families of space shuttle Challenger explosion victims in voice recordings of moments leading up to explosion), State v. Rolling, 1994 WL 722 891 (Fla. Cir. Ct.) (recognizing a right of privacy for relatives of murder victims in graphic photographs of victims' bodies), and OAG 90-56 (recognizing privacy rights of surviving victims of twelve hour hostage siege that culminated in murder/ suicide in tape recording of hostage negotiation), we held that the public's interest in disclosure of records related to a murder, attempted rape, and suicide must yield to the privacy interests of a surviving family member who had come forward to vigorously oppose release of photographs depicting her deceased husband . In 05-ORD-075, upon which the Cabinet places heavy reliance, we omitted the latter requirement, and, as a consequence, our decision was reversed on appeal.
14-ORD-090, pp. 4-5 (emphasis added). 5 "Although not entirely controlling on the issue of the public's right of access to autopsy photos or x-rays," in 14-ORD-082 this office emphasized that "proof of a heightened privacy interest supported by the surviving family members' objections to disclosure, will be considered in determining whether the public's interest must yield to the family members' privacy interest. " 6 Because there was no evidence that any surviving family members objected to disclosure of the records being sought in either 14-ORD-082 or 14-ORD-090, this office deemed the public's right to confirm that the agency (Office of the State Medical Examiner) had properly discharged its duty superior to their unsubstantiated privacy interests. See also 10-ORD-123 (KSP "offered no proof beyond a bare allegation, that the privacy interest of surviving family members outweighed the public's interest in disclosure" ). Although bodycam video is requested here, rather than autopsy photographs, etc., on the particular facts presented any practical differences between video and photographic images do not warrant departing from this line of reasoning.
The instant appeal is unique insofar as the requester is the mother of the deceased perpetrator/ shooting victim and, not only has no evidence been presented that she or any other surviving family members object to disclosure of the video in dispute, Ms. Harris has waived her privacy interests. Although not dispositive, this fact certainly undermines the argument that the bodycam video capturing the officer-involved shooting which resulted in Mr. Harris' death should not be disclosed. 7 See 05-ORD-075 ("proof that the subject of the autopsy photographs had no living close relatives, that his or her relatives had consented to disclosure of the photographs, or that his or her relatives had otherwise evinced a waiver of their privacy interests" would "almost certainly warrant a contrary holding"). In defense of its position, KSP asserted that viewing such inherently disturbing images might cause "emotional distress to any viewer." However, that fact does not alter the relevant analysis under KRS 61.878(1)(a).
The only privacy interest asserted on appeal is based on speculation that if the video is publicly released it may cause the surviving victims to suffer additional distress. As KSP acknowledged, the shooting of Ms. Harper and Mr. Krang preceded the shooting of Mr. Harris and therefore is not captured on the requested video. 8 In the absence of any other compelling facts that would justify the denial, this office finds that KSP violated the Act in denying Ms. Harris' request on the basis of KRS 61.878(1)(a). This holding should not be construed as establishing a general rule of application; rather, as in all cases involving application of KRS 61.878(1)(a), our holding is based on the particular facts presented.
Either party may appeal this decision 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 must 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 In 1981, this office recognized that "a deceased person has no personal privacy rights and the personal privacy rights of living individuals do not reach to matters concerning deceased relatives." OAG 81-149, p. 1; accord, OAG 82-413; OAG 86-31; OAG 88-2; 99-ORD-172; 01-ORD-245; 10-ORD-123; 13-ORD-023. These decisions were premised on the notion that "the right of privacy is purely personal . . . [and] that the right of action for its violation does not survive, but dies with the person whose privacy was invaded." OAG 88-2, p. 2 citing 62 Am.Jur. n2d Privacy § 43. This office has, on a few occasions, given deference to privacy rights of surviving family members in records pertaining to a decedent, if evidence of a heightened privacy interest was presented; however, this office has generally declined when, as in this case, the record on appeal is devoid any evidence of a heightened privacy interest.
2 By letter dated December 15, 2016, KSP advised Ms. Harris of a separate but related Open Records Appeal, identified as Log No. 201600458, which involves the same video that was requested in the instant Appeal, but was filed by the attorney for Mr. Harris' estate.
3 The only exception to this rule is found at KRS 61.874(4)(b), which is not implicated here.
4 Having weighed the significant interest of the public in reviewing the photographs "to ensure that the State Medical Examiner properly executed her statutory function against the privacy interests of the decedent's surviving family members," the Attorney General held that "the public interest was effectively promoted by release of the written autopsy reports and must, therefore, yield to [the decedent's] surviving family members' privacy interests in the nondisclosure of their relative's autopsy photographs." 05-ORD-075, p. 8; compare OAG 86-31(rejecting agency's reliance on KRS 61.878(1)(a) to deny a request for photos of an accident scene that contained images of a corpse but allowing for "occasions when there is a legitimate reason to prohibit the public inspection of photographs" and other images or documents pertaining to deceased individuals).
5 Blaine J. Edmond, III, et al. v. Justice and Public Safety Cabinet , Civil Action No. 05-CI-00742 (Franklin Circuit Court Division 1). In 14-ORD-082 this office noted it was instructive that the court focused on the absence of evidence "that any family members of the victim . . . have voiced any objection over the release of the autopsy photos." Id. at 3; see 14-ORD-090.
6 To the extent 05-ORD-075 suggested otherwise, it was withdrawn in 14-ORD-082.
7 As indicated, Log No. 458 was initiated by the attorney for the Estate of Joseph Harris. In submitting a request for a copy of the video, the Estate effectively waived its privacy interests as well. The record in both appeals is devoid of any indication to the contrary.
8 Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, KSP provided this office with a copy of the bodycam video in dispute for purposes of in camera review.