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 Lexington Police Department ("Department") violated the Open Records Act in its denial of attorney David Noble's September 3, 2019, request for certain body camera footage from the Department's investigation of an incident in which his client's bicycle collided with an opened car door. For the reasons stated below, we find that the Department violated the Act to the extent that the footage could be provided in redacted form.
KRS 61.168, enacted in 2018, governs access to body-worn camera recordings made by public safety officers. KRS 61.168(2) provides that unless KRS 61.168 states otherwise, "the disclosure of body-worn camera recordings shall be governed by the Kentucky Open Records Act" ; however, KRS 61.168(5)(d) provides as follows:
If the recording contains video or audio footage that [i]s requested by a person or other entity or the personal representative of a person or entity that is directly involved in the incident contained in the body-worn camera recording, it shall be made available by the public agency to the requesting party for viewing on the premises of the public agency, but the public agency shall not be required to make a copy of the recording except as provided in KRS 61.169.
In turn, KRS 61.169 requires a law enforcement agency to provide "a copy of a recording that may be viewed under KRS 61.168(5)(d)" to an attorney who represents the directly-involved party, for certain limited purposes, if the attorney executes an affidavit promising not to use or distribute the recording for any other purpose and to destroy the recording at the conclusion of the matter.
Mr. Noble enclosed with his request "an Affidavit pursuant to KRS 61.169," indicating that he regarded the request as qualifying under that section. On September 6, 2019, the Department responded, stating that the officer responding to the incident had generated "3 corresponding body worn camera videos. " The Department provided Mr. Noble with an unredacted copy of one video pursuant to KRS 61.169 because it "captures interaction between only your client and the responding officer."
As to the remaining two videos, the Department stated that these "capture interaction only between the listed suspect and the responding officer." Because "this report was 'Closed as Unfounded' and no charges were filed against any party involved in this incident," the Department asserted that "each involved party maintains an expectation of privacy. ? Therefore, as all personal identifiers relating to the suspect, which would include the suspect's personal information and image, must be redacted from the body worn camera videos, the remaining two videos have been denied pursuant to KRS 61.878(1)(a)."
Mr. Noble appealed to this office, arguing that KRS 61.878(1)(a) does not apply because "[t]he individual catastrophically injured [his] client," giving his client "the right to all evidence in this matter." In response, the Department stated that Mr. Noble "is attempting to obtain personal information for use in a civil matter of an individual who was not charged or arrested with [ sic ] a crime," and "a requestor's private interest in the information is irrelevant and does bear [ sic ] on the merits of his request."
A threshold issue in this appeal is whether Mr. Noble is entitled to obtain copies of the two videos under KRS 61.169. We conclude that he is not. The right of access under KRS 61.169 is limited to an attorney who "[r]epresents the person or entity that is directly involved in the incident contained in the body-worn camera recording. " KRS 61.169(1)(b) (emphasis added). The recordings here, as described by the Department, contain only interaction between the uncharged suspect and the responding officer. Because the recordings do not contain footage of the collision itself, or of any interaction with Mr. Noble's client, he is not entitled to receive copies of them under KRS 61.169. 1 Moreover, for the same reason, neither Mr. Noble nor his client would be entitled to view the two videos under KRS 61.168(5)(d). Therefore, under KRS 61.168(2), our analysis is governed solely by the Open Records Act.
Body camera recordings, as public records, are accessible to the public in the absence of an applicable exception to the Open Records Act. 17-ORD-009. Accordingly, we must evaluate the Department's application of KRS 61.878(1)(a).
KRS 61.878(1)(a) excludes from 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 Kentucky Court of Appeals has analyzed the public interest in open records as follows:
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. Commonwealth, Dep't 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. "A person's involvement in any capacity in a criminal investigation poses risks, if disclosed, of embarrassment and stigma, and can easily pose much graver risks as well." Id. at 85. On the other hand, "any private interest the requester may have in the information is irrelevant." Id. at 85 (emphasis added). In Kentucky New Era, Inc. , 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.
This office has held that names of witnesses and other private citizens which appear incidentally in law enforcement records are the subject of a heightened privacy interest where the individuals were not charged with a crime. 17-ORD-075. In the absence of circumstances indicating a greater countervailing public interest in the disclosure of such persons' identities, the name of a witness or uncharged suspect constitutes a "minimal addition [that] would not significantly serve the public interest in monitoring the Department's execution of its official functions." 12-ORD-227. 2 Thus, where "the redacted police report already contain[ed] the substance" of interviews conducted by the investigating officer, the disclosure of individuals' names was unnecessary to vindicate the public interest in monitoring police conduct. Id.
Mr. Noble already possesses the investigating officer's written report, as did the requesting party in 12-ORD-227. In 19-ORD-204, we upheld the Department's redaction of the names and personal identifying information of both the suspect and the victim from the written report. 3
Here, however, we are concerned not merely with items of information such as names and addresses, but with a personal privacy interest in law enforcement video footage of uncharged individuals. We have recognized that the personal privacy interest under KRS 61.878(1)(a) encompasses photographic images, which need not be disclosed where "no ? open records related public interest has been articulated." 08-ORD-014; see also 11-ORD-139; 05-ORD-005 n.11. 4 We have further recognized a personal privacy interest in recordings of a person's voice, which can also prevail under KRS 61.878(1)(a) where it outweighs the public's interest in disclosure. 16-ORD-035; 02-ORD-5; 94-ORD-144. In the context of videotapes of polygraph examinations, we have also upheld the nondisclosure of video footage of private individuals under KRS 61.878(1)(a). 04-ORD-245; 15-ORD-093. Most recently, we noted that body camera footage, like any public record, may be withheld pursuant to KRS 61.878(1)(a) where the privacy interest outweighs the public interest in disclosure. 17-ORD-009.
We find no basis for distinguishing body camera footage from other types of law enforcement records pertaining to uncharged individuals. Accordingly, the heightened privacy interest of such individuals must prevail in the absence of a superior public interest in disclosure.
On appeal, Mr. Noble did not articulate a public purpose for disclosure of the footage of the uncharged suspect. He did not assert that the footage was "necessary ? for an adequate appraisal of the conduct of the police investigation," 12-ORD-227, or that the public interest could "only be vindicated by sacrificing the privacy interests" of the uncharged individual. Kentucky New Era, Inc., 415 S.W.3d at 86. Rather, he asserted the purely private interest of his client in pursuing a civil action against the uncharged individual. "The fact that Mr. [Noble] may have a personal interest in obtaining the [records] does not equate to a preponderant interest on the part of the general public." 16-ORD-035. "It is the public's interest, and not Mr. [Noble's] personal interest, which must be advanced by release of the disputed records." 94-ORD-45. As we find no overriding public interest in the disclosure of the video footage of the uncharged suspect in this case, the balance under KRS 61.878(1)(a) weighs in favor of the heightened privacy interest of uncharged individuals in law enforcement records in which they appear.
The remaining question is whether the Department has a duty to redact the video footage. KRS 61.878(4) provides that "[i]f any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." While KRS 61.168(4) allows law enforcement agencies to withhold body camera footage in its entirety in certain circumstances, without the requirement of redaction, the Department has not indicated that any of those circumstances apply here. Therefore, the Department may not elect to withhold the footage entirely under KRS 61.168(4), but may redact the image, voice, and personal information of the uncharged suspect. 19-ORD-197. Accordingly, we find that the Department violated the Open Records Act to the extent that the withheld footage can be provided in redacted form.
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 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 Furthermore, the right to obtain copies of recordings under KRS 61.169 is expressly made "[s]ubject to the provisions of KRS 61.870 to 61.884." Thus, even if Mr. Noble were eligible to receive copies under KRS 61.169, they would be subject to possible redaction on the basis of KRS 61.878(1)(a).
2 Our ruling in 12-ORD-227 applied to the identity of the uncharged suspect, despite the substantial public interest of a newspaper investigating possible misconduct by a public official.
3 In a portion of its initial response, which Mr. Noble did not challenge on appeal, the Department stated that Mr. Noble's request for its "investigative file" was a "duplicate request" and denied it on that basis. Presumably, the investigative file comprised the materials Mr. Noble requested in 19-ORD-204.
4 But see 02-ORD-205 (personal privacy exception does not apply to arrest and booking photographs).