Request By:
Andrew Wolfson
Alicia Smiley
Annale E. Renneker
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Staff Writer Andrew Wolfson, The Courier-Journal , initiated this appeal by letter dated March 13, 2017, challenging the partial denial by the Louisville Metro Police Department ("LMPD") of his February 2, 2017, request to "inspect or obtain copies of the file in the murder and rape case against David H. Becker, who was charged in 1979 and tried in 1980." LMPD provided the requested file to Mr. Wolfson but redacted the names of witnesses from the responsive documents on the basis of KRS 61.878(1)(a). By e-mail dated March 1, 2017, Mr. Wolfson questioned the propriety of this action. Public Information Specialist Alicia Smiley justified the agency's reliance on KRS 61.878(1)(a) as follows:
Persons who are interviewed as a part of a law enforcement investigation or action are compelled to provide information (including their name) and do so without the knowledge, expectation or understanding that it may be publicly disseminated. Releasing a witness' name into the public arena has the potential to put that person at risk for harassment, retaliation, intimidation, and/or other injurious actions. In turn the release of this information would have a chilling action on those who might otherwise seek assistance from or provide cooperation to law enforcement.
On appeal Mr. Wolfson disputes the accuracy of this assertion, emphasizing that "[e]very witness statement in the file includes a statement that the witness has been advised that he or she 'can be subpoenaed into a court of law to testify in regards to the state [sic] that I am about to make.'" The Courier believes "that witnesses interviewed by police have no expectation of privacy and that the identity of witnesses is crucial in allowing the press and public to evaluate whether police are doing their jobs." Accordingly, Mr. Wolfson maintained that LMPD should provide unredacted copies of the statements of witnesses contained in the Becker file, except for those of juveniles. Based upon the following, this office respectfully disagrees.
Despite its "manifest intention to enact a disclosure statute," 1 the General Assembly has mandated that certain records are not open for public inspection, including those "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). 2 The public's "right to know" under the Act is premised upon the right of the public to expect its agencies to properly execute their statutory functions. Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992). In Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994), the Kentucky Court of Appeals observed that determining whether disclosure is warranted under KRS 61.878(1)(a) "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. [ Kentucky Board of Examiners ] at 327. . . . [T]he circumstances of a given case will affect the balance. Id. at 328." Zink at 828. The only relevant public interest considered "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . [T]he purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Id. at 829; 12-ORD-227 (superior privacy interest attached to individuals "who had incidental contact with the" police department but were not charged with any crime and releasing names of the individual employees interviewed "would not significantly serve the public interest in monitoring the Department's execution of its official functions"); 17-ORD-066.
Upon receiving notification of Mr. Wolfson's appeal from this office, Annale E. Renneker, Assistant Jefferson County Attorney, responded on behalf of LMPD. Ms. Renneker correctly observed that "a person's name is information of a personal nature." 3 LMPD believes "that witness names are generally exempt from disclosure under KRS 61.878(1)(a)." In support of this position, LMPD engaged in the following persuasive analysis:
We must next conduct a balancing test to determine whether the public's curiosity about a witness' name outweighs the individual's privacy interest in non-disclosure. Zink , [902] S.W.2d at 828. The Kentucky Court of Appeals conducted the Zink balancing test when the disclosure of the name of an uncharged suspect in a rape case was sought by the Herald-Leader. Lexington Herald-Leader Services, Inc. v. Lexington-Fayette Urban County Government, 297 S.W.3d 579 (Ky. App. 2009). The Court acknowledged the obvious invasion of personal privacy that would occur by compelling disclosure of the name of the rape suspect. Id. at 584. The Herald-Leader maintained the public's legitimate interest in "monitoring police conduct and, in particular, in 'ensuring that the . . . investigation was handled competently, completely and without favoritism or bias.'" Id. at 585. (Internal citation omitted). However, the Court found that the Herald-Leader failed to demonstrate how the disclosure of the rape suspect's name would further the public's interest. Id. Additionally, the Court relied on the fact that the Herald-Leader had not established or maintained the 900 pages of documents already provided were insufficient to fully investigate police conduct. Id.
We refer you to 12-ORD-227 involving the privacy interests of an elected public official investigated for felony theft. In 12-ORD-227, the Attorney General relied on both Lexington H-L Services, supra, and 09-ORD-156, which concluded that an analysis conducted in a federal court decision suggested "that if any bright line demarcates a heightened privacy interest, it is the line between being charged and not being charged." [ Id. ] at 6. As a result, the Attorney General concluded the elected public official suspected of felony theft, but never charged, had a heightened privacy interest in disclosure of his name. Id.
In 12-ORD-227, the requestor also appealed the police department's decision to redact the names of witnesses interviewed under KRS 61.878(1)(a). Id. at 7. The Attorney General concluded that the interviewed witnesses had the same heightened privacy interest an uncharged suspect has. Id. The redacted records already contained "the substance of the witness interviews[;] the minimal addition of the names of the individual employees interviewed would not significantly serve the public interest in monitoring the [Police] Department's execution of its official functions." Id. , see Zink v. Com., supra, 902 S.W.2d at 829. ("the purpose of disclosure . . . is not fostered however by disclosure of information about private citizens . . that reveals little or nothing about an agency's own conduct").
Just as in that case, Ms. Renneker observed, the individuals whose names are in dispute were interviewed during the investigation of a crime. LMPD finds "it a stretch to argue that an acknowledgement for a potential subpoena in court testimony, a limited and narrow situation that would have already happened as the trial was held in 1980, also means the witness acknowledged and agreed for their name to be released to the general public, " as Mr. Wolfson argued. This office agrees. LMPD noted that in 12-ORD-227 the Attorney General recognized that a witness "who had incidental contact with" police during an investigation but was never charged with any crime has a heightened privacy interest. Because the events regarding which the witnesses agreed to testify if necessary happened over thirty years ago here, LMPD determined the privacy interests of the individuals outweighed the general public interest asserted. The agency's position is persuasive when viewed in light of Lexington Herald-Leader, above , 12-ORD-227, and 17-ORD-066 (following Kentucky New Era and 12-ORD-116).
As in Lexington Herald-Leader, above , the Courier "has never established or even maintained that [documents already released] were insufficient to provide an adequate basis to fully investigate police conduct. " 297 S.W.3d at 585. Rather, the Courier , like the Herald-Leader , "simply maintains that disclosure of the [witnesses' names] would generally promote the public interest of monitoring police conduct. " Id. See 06-ORD-230 (holding that public's interest in evaluating the agency's conduct by listening to recordings of 911 calls outweighed the privacy interests of the individual callers in their observations but affirming the agency's redaction of the 911 callers' names and telephone numbers ); 16-ORD-261 (following Lexington Herald-Leader and 12-ORD-227 in affirming the redaction by the University of Louisville of certain travel data from responsive invoices on the basis of KRS 61.878(1)(a) as disclosure would reveal the identities of student athletes interviewed during parallel investigation by law enforcement) . Most recently, in 17-ORD-066, this office affirmed the redaction by LMPD of the names and telephone numbers of 911 callers, i.e. , potential witnesses, of a motor vehicle accident from the responsive 911 audio recording and Computer Aided Dispatch (CAD) Report on the basis of KRS 61.878(1)(a). 4 This office partially relied upon Kentucky New Era , above, in which the Kentucky Supreme Court affirmed the "categorical redaction" of information that identified private individuals (whose names were released) from law enforcement records. See 17-ORD-066, pp. 5-7. This office further noted that names of private individuals may also be redacted in the absence of any indication that disclosure of would promote the purpose of the Act. Id.
The general public interest asserted here (monitoring police conduct) is more significant as compared to that of the requester in Zink (dissemination of unsolicited information to injured workers), or the requesters in 12-ORD-116 and 17-ORD-066 (purpose was to pursue clients' legal claim and no significant public interest was asserted), for example. As in those cases, however, disclosure would, at best, "serve the broad public interest, " i.e. , monitoring police conduct here, but disclosure of the witnesses' names "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." Zink at 829. No evidence has been presented to suggest that disclosure of the names of witnesses to a crime that was committed more than 30 years ago "would further the principal purpose of the Open Records Act, " Id. , or that disclosure of the remainder of the investigative file did not sufficiently advance the only relevant purpose of advancing the public's right to know if LMPD properly discharged its statutory duties; nor does the record on appeal contain any indication that LMPD failed to discharge those duties in the subject investigation. 5 17-ORD-066, p. 5. Under these circumstances, the "minimal addition" of the names in dispute "would not significantly serve the public interest in monitoring the Department's execution of its official functions." 12-ORD-227, p. 11. Accordingly, LMPD properly redacted the names of the witnesses on the basis of KRS 61.878(1)(a).
Either party may appeal this decision may appeal 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