Request By:
Mr. Ed Burtner
City Manager, City of Winchester
City Hall
Winchester, Kentucky 40391
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. Ray Cohn has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect and copy various documents in the possession of the city of Winchester.
In a letter to the city of Winchester, apparently dated December 3, 1987, a copy of which has not been made available to this office, Mr. Cohn requested access to various records in the city's possession concerning the death of Mr. David B. Redwine.
Mr. Glen Spivey, Assistant Police Chief, initially responded to Mr. Cohn in a letter dated December 4, 1987, and advised Mr. Cohn that he would have to submit his request on the proper municipal form.
In a letter to Mr. Spivey, dated December 8, 1987, which was accompanied by the proper form, Mr. Cohn requested that, pursuant to the terms and provision of the Open Records Act, he be permitted to inspect all records in possession of the Winchester Police Department relating to the November 16, 1987, suicide of David B. Redwine. "The records I seek include, but not are not limited to notes, tapes, financial records, legal records and other documents that the department examined in connection with his suicide. "
Mr. Cohn further stated in his letter that he had been told that the investigation of the matter had been completed, that the death was ruled a suicide and that there is no pending criminal investigation relative to the matter.
You replied to Mr. Cohn in a letter dated December 10, 1987, that his request was being denied pursuant to KRS 61.878(1)(a) "in that the records contain information of a personal nature where the disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
In his letter of appeal received by this office on January 14, 1988, Mr. Cohn takes exception to your handling of his request to inspect records. He maintains that the records are subject to public inspection and that the exception to public inspection set forth in KRS 61.878(1)(a) is not applicable since Mr. Redwine is deceased. In support of his position he cites OAG 82-590.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order authorizing inspection are those set forth in KRS 61.878(1)(a) and described as, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
In connection with the utilization of the privacy exemption, however, this office has said numerous times that a deceased person, generally, has no right of privacy under KRS 61.878(1)(a) of the Open Records Act. Requested records cannot be withheld from public inspection on the grounds of personal privacy when those records pertain to persons who are deceased as the right of privacy of those persons terminated at the time of their deaths. A deceased person has no personal privacy rights and the personal privacy rights of living persons do not extend to matters concerning deceased relatives. See OAG 81-149, OAG 82-413, OAG 82-590 and OAG 86-31, copies of which are enclosed, as well as the cases of
McLean v. Rogers, 100 Mich.App. 734, 300 N.W.2d 389, 391 (1980);
Moore v. Charles B. Pierce Film Enterprises, Tex. Civ. App., 589 S.W.2d 489 (1979);
Loft v. Fuller, Fla.App., 408 So.2d 619 (1982);
Flynn v. Higham, 149 Cal.App.3d 677, 197 Cal. Rpt. 145 (Cal. App. 2 Dist. 1983).
In 77 C.J.S. Right of Privacy § 1(c), it is stated in part that on the theory that the right of privacy is purely personal, it has been held or recognized that it may be enforced only by the person whose right has been infringed. Furthermore, the individual right of privacy which any person has during his life dies with the person and any right of privacy which survives is a right pertaining to the living only.
In 62 Am.Jur.2d Privacy § 43 the following appears: "It has generally been held that the right of privacy is purely personal, and that the right of action for its violation does not survive, but dies with the person whose privacy has been invaded. "
As to attempts by relatives or representatives of a deceased to recover for invasion of privacy resulting from posthumous publicity pertaining to the decedent, the following appears in 62 Am.Jur.2d Privacy § 12:
[I]t is usually not altogether clear in such cases whether the claim is based on a theory that the decedent's right of privacy survived him and was enforceable by his representatives, or upon the contention that the privacy of the survivors was invaded by publicity relating to one with whom they were closely involved, even though they suffered no direct publicity. In any case, the courts have usually been unsympathetic to such a cause of action and have denied relief . . .
There no doubt will be occasions when there is a legitimate reason to deny a request to inspect public records and documents pertaining to a person who is deceased and we do not mean to imply the contrary. However, KRS 61.880(2) places the burden of proof in sustaining a denial of a request to inspect public records on the public agency. In this situation the only reason set forth to justify the denial is a blanket reliance upon the exemption dealing with an unwarranted invasion of personal privacy. That is not a legally sufficient reason where the person involved is deceased.
It is, therefore, the opinion of the Attorney General that the public agency improperly relied upon the exception to public inspection set forth in KRS 61.878(1)(a). The public agency cannot invoke the privacy exemption to public inspection to impose a general ban on all public records and documents pertaining to a deceased person since, generally, privacy is a personal right which dies with the deceased person.
As required by statute a copy of this opinion is being sent to the requesting party, Mr. Ray Cohn. If you or the public agency decide not to comply with the conclusions set forth in this opinion, proceedings challenging this opinion may be instituted in the appropriate circuit court pursuant to KRS 61.880(5).