24-ORD-116
May 9, 2024
In re: Michael P. Moore/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”), when it redacted or withheld information which
is exempted from disclosure under KRS 61.878(1)(a), (k), and (q).
Open Records Decision
Michael P. Moore (“Appellant”) submitted a request to KSP for “a total copy of”
KSP’s investigation file related to his criminal case. In a timely response, KSP
partially denied his request under KRS 17.150(2) because it is “actively investigating”
this case. This appeal followed.
On appeal, KSP states its investigation has concluded and it is making the
previously withheld records available to the Appellant upon payment of a prescribed
copying fee.1 However, KSP further states it redacted the records under
KRS 61.878(1)(a) and (k). It also withheld “graphic images depicting the deceased”
under KRS 61.878(1)(q).
KRS 61.878(1)(a) exempts “[p]ublic records containing information of a
personal nature where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.” In reviewing an agency’s denial of an open
records request based on the personal privacy exemption, the courts and the Office
balance the public’s right to know what is happening in government against the
personal privacy interest at stake in the record. See Zink v. Commonwealth, Dep’t of
1
KSP states it “will send the responsive records to [the Appellant] on a flash drive by U.S. mail
upon receipt of payment.” Although the Appellant has not objected to this form of delivery, it is not
clear whether the records can be delivered to the Appellant on a flash drive. The Appellant is currently
incarcerated. Department of Corrections Policies and Procedures 9.6 § 2(A)6. defines contraband to
include “any device capable of storing data for review” such as “unsupervised flash drives.”Workers’ Claims, 902 S.W.2d 825, 828 (Ky. App. 1994). However, the Supreme Court
of Kentucky has held that certain categories of information about private individuals
provide minimal insight into governmental affairs and may be categorically redacted
under KRS 61.878(1)(a). Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 89
(Ky. 2013). These categories include home addresses, personal phone numbers,
driver’s license numbers, and Social Security numbers. Id.
Here, KSP states it redacted “personal information includ[ing] social security
numbers, home addresses, personal telephone numbers, dates of birth, and driver’s
license numbers” from the records. Because Kentucky New Era holds this information
may be categorically redacted under KRS 61.878(1)(a), KSP did not violate the Act
when it made these redactions.
KSP also redacted “personal information obtained from the driver’s license
database in compliance with The Driver’s Privacy Protection Act, 18 U.S.C. § 2721,
incorporated into the Open Records Act by KRS 61.878(1)(k).” Section 2721(a)
prohibits the release and use of certain personal information from State motor vehicle
records,2 and is incorporated into the Act by KRS 61.878(1)(k), which exempts from
inspection “[a]ll public records or information the disclosure of which is prohibited by
federal law or regulation.” Thus, KSP did not violate the Act when it withheld
information that federal law requires KSP to keep confidential.
Finally,
KSP
withheld
“graphic
images
depicting
deceased”
under
KRS 61.878(1)(q). KRS 61.878(1)(q) exempts from inspection “photographs or videos
that depict the death, killing, rape, or sexual assault of a person.” Thus, KSP did not
violate the Act when it withheld photographs depicting the deceased victim in the
case.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
2
“Personal information” is defined in 18 U.S.C. § 2725(3) as “information that identifies an
individual, including an individual's photograph, social security number, driver identification number,
name, address (but not the 5-digit zip code), telephone number, and medical or disability information,
but does not include information on vehicular accidents, driving violations, and driver’s status.” Highly
restricted personal information is defined in § 2725(4) as “an individual’s photograph or image, social
security number, medical or disability information[.]”Russell Coleman
Attorney General
/s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#194
Distributed to:
Michael P. Moore #319001
Samantha Bevins
Abbey Hub
Stephani Dawson
Mitchell Hazelett