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 Louisville Metro Police Department ("LMPD") violated the Open Records Act in its partial denial of requests by Kala Kachmar and Jonathan Bullington, reporters for The Courier-Journal , dated July 18, 2019, and August 22, 2019, relating to data on shooting incidents and thefts of firearms. For the reasons that follow, we find that LMPD violated the Act procedurally, but not substantively.
First request
On July 18, 2019, Ms. Kachmar e-mailed a request for electronic records from LMPD's database, consisting of certain specified information about "[s]hooting incidents involving one or more victims from Jan. 1, 2009 to the present." LMPD responded on July 31, 2019.
KRS 61.880(1) requires a public agency to issue its written response to an open records request within three days, excluding weekends and legal holidays. Having received Ms. Kachmar's e-mail at 12:45 P.M. on July 18, 2019, LMPD was obligated to respond by July 23, 2019. 19-ORD-175 n.2. As LMPD gave no explanation for its untimely response, it procedurally violated the Open Records Act.
We need not address the substance of LMPD's July 31, 2019, response, because Ms. Kachmar revised her request on August 5, 2019. In her amended request, she requested data described as follows: "Shooting incidents involving one or more victims from Jan. 1, 2009 to the present, including the date of the incident, time of the incident, address of the incident, narrative details, the type of gun involved if it was recovered, victim(s) names, victim(s) gender, victim(s) DOB, victim(s) race, victim(s) injuries (including fatalities), and arrests made in each incident (name, DOB, race, gender, home address) and LMPD's charges that went along with each arrest." She clarified that she was not asking for victims' home addresses, court records, or the names of witnesses or uncharged suspects.
On September 12, 2019, LMPD provided the requested records with redactions. LMPD again failed to explain why it had not provided the records within three business days, and thus committed another procedural violation of KRS 61.880(1).
In its response to the amended request, LMPD stated: "Juvenile names have been redacted pursuant to KRS 610.320(3) and 610.340 which specifically exempts juvenile law enforcement records from disclosure. Victim names are exempt from release pursuant to KRS 61.878(1)(a) which exempts the release of that information considered to be an unwarranted invasion of personal privacy. " Citing
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013), LMPD clarified its reasons for the redactions: "[V]ictims of crimes share a substantial privacy interest in the nondisclosure of their identities[.] [T]here are clear and compelling reasons for withholding a shooting victim's name, pursuant to KRS 61.878(1)(a). Publicly releasing a victim's name opens that person to the possibility of future harm be it through embarrassment, harassment, or other social stigma. In particular, releasing the name of a shooting victim potentially puts that victim at risk for retaliation or other physical harm/injury, thus serving to further traumatize and victimize that individual." Finally, LMPD stated that dates of birth were redacted pursuant to KRS 61.878(1)(a) because disclosure of that information "serves no purpose in furthering the public interest and may easily put a person at risk for identity theft. " LMPD provided individual age data in lieu of birthdates.
On appeal, The Courier-Journal objected to the redaction of the names and birthdates of shooting victims. 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 outweighed 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 at 83, 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.
In 19-ORD-204, we upheld the Lexington Police Department's redaction of the name of an accident victim from a police report. The Courier-Journal has not articulated any reason as to why shooting victims should be entitled to less privacy than an accident victim. Furthermore, dates of birth appearing in law enforcement records "are generally subject to categorical redaction under KRS 61.878(1)(a)." 17-ORD-269; see also 15-ORD-196. As this case presents no reason to depart from these precedents, we find no substantive violation of the Open Records Act in LMPD's final disposition of Ms. Kachmar's request.
Second request
On August 22, 2019, Mr. Bullington requested "incident reports and any other supporting documents" for 28 separate incidents involving the theft of ten or more firearms. On that same date, LMPD contacted Mr. Bullington to make sure paper copies would be acceptable. LMPD's final disposition of the request, however, did not occur until September 13, 2019, which again violated the time limitation under KRS 61.880(1). In its final disposition, LMPD stated that it had redacted "[v]ictim and juvenile names, residential addresses, DOBs, phone numbers, SSNs, operator license numbers and VINs" for privacy reasons pursuant to KRS 61.878(1)(a), as the release of such information potentially placed victims and juveniles "at risk for embarrassment, harassment, identity theft, retaliation and/or injurious actions."
On appeal, The Courier-Journal raised three objections. First, it argued that LMPD should have released victims' names, residential addresses, and dates of birth. Our analysis as to victim names and birthdates is no different from that in the case of Ms. Kachmar's request. We find no circumstances in this case that would alter the balance of interests, which weighs in favor of personal privacy under KRS 61.878(1)(a). Furthermore, residential addresses of crime victims are generally subject to categorical redaction under KRS 61.878(1)(a). Kentucky New Era, Inc., 415 S.W.3d at 86. This case presents no basis for departing from that general rule. In a response to the appeal on December 3, 2019, LMPD confirmed that the only addresses redacted were residential. 1 Accordingly, these redactions did not violate the Open Records Act.
Second, The Courier-Journal argued that LMPD failed to release the "investigative narrative" for each case. In its response to the appeal, LMPD stated that these narratives were omitted through "administrative oversight"; LMPD subsequently confirmed that they have been made available to Mr. Bullington. In view of these circumstances, this argument is now moot. See 40 KAR 1:030, Section 6 ("If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter").
Finally, The Courier-Journal argued that it could not tell what redactions LMPD had made because the pages were redacted in white. LMPD responded by confirming that its e-mail on September 13, 2019, identified all of the redactions made. As we have no basis for suspecting that LMPD redacted any additional information, we conclude that LMPD complied with its duty "to identify ? the information redacted from the records." 17-ORD-146. Therefore, we find no violation arising from the fact that redactions were made in white.
Conclusion
LMPD procedurally violated the Open Records Act by failing to make timely dispositions of the requests from Ms. Kachmar and Mr. Bullington. With regard to the redactions made, LMPD did not substantively violate the Act.
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, LMPD's redactions were only minimal, leaving visible the street name, city, and ZIP code. The Courier-Journal has not articulated any heightened public interest in specific house numbers or apartment numbers that would outweigh the victims' personal privacy interest in this information.