Opinion
Opinion By: Andy Beshear,Attorney General;J. Marcus Jones,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Transit Authority of River City ("TARC") violated the Open Records Act ("Act") in the denial of Mathias Hamilton's ("Appellant") open records request. For the reasons below, we find that TARC violated the Act in failing to prove that disclosure of surveillance footage would have a reasonable likelihood of threatening public safety within a defined category of a terrorist act. We also find that TARC violated the Act by withholding surveillance footage subject, because it did not establish a personal privacy interest that outweighs the significant public interest in disclosure, as required by KRS 61.878(1)(a).
On December 14, 2018, Appellant submitted a request for a copy of a "[v]ideo from coach 2307 that [the] driver . . . was operating showing the incident that led to TARC's decision ( sic ) his termination." On December 17, 2018, TARC denied the request stating, Decision adopting 15-ORD-041 "TARC does not release surveillance video pursuant to open records requests, as such records are exempt. . .pursuant to KRS 61.878(1)(m) in that they reveal the location, quality, and potential vulnerabilities of surveillance measures which have been implemented for the promotion of public safety. "
TARC also denied Appellant's request based on the personal privacy interest of the bus passengers under KRS 61.878(1)(a). TARC stated that the surveillance video includes images and audio of passengers and other members of the public. TARC argued that "[t]he privacy interests of those individuals. . .their identities and their interests in personal security, are clearly implicated in releasing surveillance video, and such identifying information is exempt pursuant to KRS 61.878(1)(a)." TARC argued that it "does not have the capacity to redact such information from video, so the necessity of redacting such information would impose an unreasonable burden. . .pursuant to KRS 61.872(6)."
On December 22, 2018, Appellant appealed the disposition of his request. TARC did not respond to the appeal. On January 8, 2019, we asked TARC to provide this office a copy of the responsive record in camera review, pursuant to KRS 61.880(2)(c) 1 and 40 KAR 1:030, Section 3. 2 We noted that the Act, as a whole, "exhibits a general bias favoring disclosure" and places the burden of establishing an exemption on the public agency.
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992).
Due to the absence of a response to the appeal, we also asked TARC to provide additional documentation of their denials because the record on appeal "does not contain adequate information for the Attorney General to conclusively resolve the question(s) presented in this appeal." See 40 KAR 1:030, Section 3. We asked TARC to support their claim of an exemption under KRS 61.878(1)(m) by specifying "which subparagraph of KRS 61.878(1)(m) is applicable to the denied records." See 17-ORD-179; 17-ORD-272. Regarding TARC's denial under KRS 61.878(1)(a), we asked that they identify "the exact nature of the privacy interest at risk in this case, so that we may weigh the interest against [Appellant's] right to access public information."
On February 14, 2019, TARC submitted a copy of the surveillance footage for our in camera review, but the copy was not in a format compatible with the systems used by this office. However, TARC provided additional documentation of their denials. TARC stated that the surveillance footage is "exempt under KRS 61.878(1)(m)(l)(e), (f) and (g)," asserting:
Mass transit systems are historical targets for terroristic acts and are a serious concern for transit authorities. The TARC security camera system is an instrumental deterrent to terroristic criminal activity targeting the mass transit system, as well as a key component of TARC's and the Metro Government's response system to such acts, and the release of information revealing cameras' locations and the extent and quality of their coverage reveal precisely the sort of tactical information a terrorist organization or individual intent on engaging in terroristic criminal activity would want to know in carrying out such acts.
With respect to the privacy interest underlying their application of KRS 61.878(1)(a), TARC argued:
Video that depicts faces, clothing, and locations where individuals embarked or debarked buses could all be utilized to easily determine identities of individual members of the public. . .such personal identifying information falls squarely within the scope of private information which a public agency has a duty to redact[.]
TARC Failed to Meet Its Burden of Proof Under KRS 61.878(1)(m) .
TARC bears the burden of proof in these appeals, pursuant to KRS 61.880(2)(c) and 61.882(3). 3 We find that TARC did not meet its burden because it failed to establish both of the required elements for denying Appellant's request. We first address TARC's argument under KRS 61.878(1)(m)1.(e), (f), and (g), known as the "homeland security exemption. " In pertinent part, the exemption states:
1. Public records the disclosure of which would have a reasonable likelihood of threatening the public safety by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terroristic act and limited to:
2. As used in this paragraph, "terrorist act" means a criminal act intended to:
(Emphasis added). This office has recognized that "[s]uccessfully invoking KRS 61.878(1)(m), popularly known as the 'homeland security' exception, requires a public agency to meet a heavy burden." See, e.g. , 09-ORD-100; 05-ORD-175; 09-ORD-124, p. 5 (finding the City of Bardstown had not made a "serious effort to meet this burden"). The high burden is created by the essential requirement that disclosing the responsive records must 1) create a "reasonable likelihood of threatening the public safety, " and 2) specifically "by exposing a vulnerability in preventing, protecting against, mitigating, or responding to a terrorist act" as defined by subparagraph 2. 09-ORD-100, p. 4. We have found that "inclusion of these distinct and separate requirements imports a legislative resolve that the provision be invoked judiciously and only when all requirements have been met." Id. ; 12-ORD-136, p. 9.
As applied in this case, it is not sufficient for TARC to merely state that the surveillance camera footage could expose a vulnerability by revealing camera locations and the extent and quality of their coverage. The argument only addresses the second prong of the "homeland security" exception. Application of the exception also requires that TARC meet the first prong by establishing a "reasonable likelihood" that the "public safety" is threatened with regard to the ability to prevent, protect against, mitigate, or respond to a "terrorist act. " TARC argued that "mass transit systems are historical targets for terroristic acts" and release of the surveillance footage would "reveal precisely the sort of tactical information a terrorist organization or individual intent on engaging in terroristic criminal activity would want to know[.]" However, this argument is a universal concern that does not evidence a specific threat to public safety caused by the release of the record requested by Appellant. Nor does the argument articulate one of the criminal acts that meet the definition of a "terrorist act, " listed in KRS 61.878(1)(m)2.
TARC's argument is identical to that of the Kentucky State Police ("KSP") in 15-ORD-041 (copy attached)(holding that surveillance video of the lobby of a state police post did not qualify for the "homeland security" exemption) . However, we reached the same result in that case. We found that, while disclosure of the location of KSP's surveillance cameras was a possibility, such a disclosure did not necessarily constitute a threat to "public safety" or automatically fall into one of the categories of a "terrorist act" listed in KRS 61.878(1)(m)2. See 15-ORD-041, p. 5. Likewise, TARC did not establish a reasonable likelihood of threatening the public safety that falls within the identified categories of "terrorist act [s]."
We are not at liberty to discuss the content of records submitted for in camera review, and we were not able to review the responsive surveillance footage. However, our review of the evidence available in the record shows that the subparagraphs of KRS 61.878(1)(m) do not apply to the withheld surveillance footage. The language of statute subparagraph 1.g. does not support TARC's argument. The form of records shielded by this subparagraph are expressly "limited to" certain types: " detailed drawings, schematics, maps, or specifications of structural elements, floor plans, and operating, utility, or security systems." (Emphasis added.) The responsive surveillance footage, though it may relate to a security system, does not constitute "drawings, schematics, maps, or specifications" of the security system. Neither is there any evidence supporting TARC's reliance on subparagraph 1.e., which expressly limits its application to "security and response needs assessments." There is no evidence in the record that the surveillance footage is an assessment. Accordingly, we find that TARC failed to meet its burden of proof with respect to the denial based on KRS 61.878(1)(m).
TARC Failed to Establish Application of KRS 61.878(1)(a) .
TARC claims that the surveillance footage should be exempt from disclosure due to personal privacy concerns. KRS 61.878(1)(a) excludes from the application of the Act "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " The Kentucky Court of Appeals explained its "mode of decision" under KRS 61.878(1)(a):
[O]ur analysis begins with a determination of whether the subject information is of a "personal nature." If we find that it is , we must then determine whether public disclosure "would constitute a clearly unwarranted invasion of personal privacy. " This latter determination 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. . . . As the Supreme Court noted, the circumstances of a given case will affect the balance.
Zink v. Com., Dep't of Workers' Claims, 902 S.W.2d 825, 828 (Ky. App. 1994)(citing
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327-28 (Ky. 1992))(Emphasis added). Therefore, we must initially determine whether the responsive record contains information that is of a "personal nature."
Palmer v. Driggers, 60 S.W.3d 591, 598 (Ky.App. 2001). No balancing of interests is necessary until it has been determined that the subject information is of a "personal nature." Zink, 902 S.W.2d at 828. The question, therefore, is whether the individual transit passengers have a substantial enough privacy interest in their "faces, clothing, and locations where [they] embarked or debarked buses" implicated by release of the surveillance videos to outweigh the public interest in disclosure of such surveillance footage. We conclude that they do not.
In its analysis, the court in Zink found that the requested information was of a "personal nature" because it touched upon the "personal features of private lives." Id. Following that observation, the court stated "information such as marital status, number of dependents, wage rate, social security number, home address and telephone number are generally accepted by society as details in which an individual has at least some expectation of privacy." The court recognized that much of the requested information was "publicly available through sources such as telephone directories and voter registration lists." However, the court found that the information was nevertheless personal based on "an individual's interest in selective disclosure. "
In
Lexington-Fayette Urban County Gov't v. Lexington Herald-Leader Co., 941 S.W.2d 469, 472 (Ky. 1997), the Supreme Court of Kentucky analyzed the decisions examining KRS 61.878(1)(a) and stated:
The foregoing decisions establish certain points which are noteworthy in this case. 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 likely cause serious personal embarrassment or humiliation. 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. In Zink the information sought did not implicate any significant public interest but did transgress, albeit not greatly, upon the privacy of the subject individuals.
Following the guidance of the foregoing decisions, we find that "faces, clothing, and locations where individuals embarked or debarked buses" is not information of a "personal nature." Unlike the information in Zink , the information in this case is publicly discernable. An individual has little or no ability to selectively disclose their face, clothing, or their points of embarking or disembarking a public mass transit system. Unlike the information in Board of Examiners of Psychologists , disclosure of the information in this case is not likely to cause serious or personal embarrassment or humiliation. The facts in the record evidence only a minimal personal privacy interest implicated by release of the surveillance footage.
Even assuming a more significant personal privacy interest, the public interest in disclosure of the surveillance footage is significantly higher. The public interest to be considered is the purpose of the Open Records Act in general, which "is meant to open the state's public agencies to meaningful public oversight, to enable Kentuckians to know 'what their government is up to.' It is not meant to turn the state's agencies into a clearing house of personal information about private citizens readily available to anyone upon request."
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013). See also Zink, 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"). However, the event underlying the request for this surveillance footage is an alleged assault committed by a mass transit operator. The recording of that event is significant and meaningful to the public's oversight of the performance of the public agency. Accordingly, we find that TARC failed to establish a personal privacy interest that outweighs the substantial public interest in disclosure as required by KRS 61.878(1)(a) . 4
Either party aggrieved by 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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."
2 40 KAR 1:030 Section 3 states: "Additional Documentation. KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."
3 KRS 61.882(3) states, in relevant part: "In an original action or an appeal of an Attorney General's decision, where the appeal is properly filed pursuant to KRS 61.880(5)(a), the burden of proof shall be on the public agency."
4 TARC argues that it lacks the equipment necessary to redact the surveillance footage, and requiring such redactions would be unreasonably burdensome, pursuant to KRS 61.872(6). However, we find that redaction of the surveillance footage is not permitted because TARC did not established the existence of a personal privacy interest per KRS 61.878(1)(a). Further, TARC has not provided clear and convincing evidence to support a finding that redacting the surveillance footage would be an unreasonable burden, as required by Commonwealth v. Chestnut, 250 S.W.3d 655, 664-65 (Ky. 2008).