Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kentucky State Police did not violate the Open Records Act in the disposition of Supriya Vasanth's June 7 and July 2, 2010, requests for records relating to the 2003 murder of Ann Branson in Madisonville, Kentucky. Although the last appeal in this prosecution has not been exhausted, KSP provided its investigative records, including recorded interviews of Daniel Morseman and Cindy Moore, to Ms. Vasanth after obtaining the prosecuting attorney's consent. Based on existing legal authority, we find no error in KSP's refusal to disclose polygraph examination records and rap sheets. Nor do we find any error in KSP's denial of that portion of Ms. Vasanth's request relating to court records, corrections records, reward posters, or records relating to the victim's memorial service insofar as those records were not in KSP's possession. While we approve KSP's redaction of the victim's, the witnesses,' and even the defendants' social security numbers and the victim's and witnesses' dates of birth, pursuant to KRS 6.1878(1)(a), we cannot affirm KSP's redaction of their home addresses and telephone numbers absent a particularized showing that disclosure would constitute a clearly unwarranted invasion of their personal privacy. Nor can we affirm the redaction of information falling within the parameters of "etc." as to the victim, witnesses, or the defendants, insofar as we have no idea what information comprises "etc."
Kentucky's courts and this office have long recognized that a law enforcement agency may properly withhold investigative records relating to an ongoing prosecution until the last appeal has been exhausted. Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992); Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005); 09-ORD-104 (enclosed) and authorities cited therein. This position is predicated on the express language of KRS 61.878(1)(h) which provides, in part, that law enforcement agencies may withhold:
Records . . . compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action . . . Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action . . . . The exemptions provided by this subsection shall not be used by the custodian of records to delay or impede exercise of rights granted by KRS 61.870 to 61.884.
(Emphasis added.) In construing the italicized language, the courts and this office have affirmed law enforcement agencies' denials of requests for investigative records as "long as the possibility of further judicial proceedings in this case remains a significant prospect." Skaggs at 391.
Notwithstanding this holding, KSP conferred with the prosecuting attorney in this case and agreed to waive KRS 61.878(1)(h) by releasing its investigative file to Ms. Vasanth to avoid impeding the exercise of rights granted to her by the Open Records Act. Although some two months elapsed between the date on which Ms. Vasanth made her initial request and the date on which the records were released to her, KSP complied with the procedural requirements of the Open Records Act, codified at KRS 61.880(1), by promptly responding to her requests and maintaining contact with her while attempting to obtain the prosecutor's consent to disclosure of the records. Bearing in mind that KSP might have denied her request until there was no significant prospect of further judicial proceedings, on the basis of KRS 61.878(1)(h) , we find no error in its disposition of this portion of Ms. Vasanth's request.
Nor do we find any error in KSP's refusal to honor Ms. Vasanth's request for the defendants' polygraph examination records and "rap sheets. " With reference to the latter, in 06-ORD-128 this office construed KRS 17.150(4) to authorize nondisclosure of centralized criminal history records maintained by KSP. A copy of that decision is attached hereto and incorporated by reference. Although there is no specific statutory prohibition restricting access to polygraph examination records, the Attorney General has, since 1983, recognized the "implied confidentiality [of] polygraph testing . . ." under authority of KRS 61.878(1)(j). We analyzed this question in considerable depth in 04-ORD-245, a copy of which is attached hereto and incorporated by reference. Finally, we find no error in KSP's denial of that portion of Ms. Vasanth's request that relates to court records, corrections records, reward posters, or records relating to the victim's memorial services. KSP clearly and emphatically states that none of these records are in its custody. Absent specific evidence to the contrary, the Open Records Act requires nothing more. Bowling v. Lexington-Fayette Urban County Government, above.
The courts and this office have, with no known exceptions, approved nondisclosure of social security numbers, the proverbial "keys to the information kingdom," the disclosure of which would not meaningfully advance the public's right to know how public agencies are discharging their duties. Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994). The same protection has generally been accorded dates of birth. Thus, in 00-ORD-206, we examined a line of open records decisions affirming agency nondisclosure of dates of birth, but recognized a limited exception for individuals convicted of a crime and incarcerated in a correctional facility. A copy of that decision is attached hereto and incorporated by reference. KSP properly redacted all social security numbers that appeared in the records disclosed to Ms. Vasanth as well as the dates of birth of the victim, witnesses, and all others whose names appear in the records, excluding the defendants. Although Zink, above, also recognized a significant privacy interest in home addresses and telephone numbers that is generally superior to the public's right to monitor agency performance, Zink did not establish a rule of blanket nondisclosure of this information. Accordingly, it is incumbent on KSP to make a particularized showing that disclosure of addresses and telephone numbers, on these facts, constitutes a clearly unwarranted invasion of personal privacy. Finally, we cannot approve KSP's redaction of information encompassed by the term "etc." that appears in its August 2, 2010, final response to Ms. Vasanth. Such terminology gives neither Ms. Vasanth nor this office an adequate description of the information withheld. If, in fact, any information was redacted under this "catch-all," those redactions constitute a violation of the Open Records 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Supriya VasanthEmily M. Perkins