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 Louisville Metro Police Department violated the procedural requirements of the Open Records Act in the disposition of Teddy B. Gordon's August 12, 2011, request for "all documents the LMPD has on file which relate to" an incident involving his client, a Frayser Elementary School student, that occurred on March 23, 2011. We further find that although LMPD properly relied on KRS 610.320(3), 1 incorporated into the Open Records Act by KRS 61.878(1)(l), 2 in withholding investigative files identifying other students against whom Mr. Gordon's client leveled allegations, LMPD erred in withholding records from Mr. Gordon that pertained exclusively to his client on the same basis. Finally, we find that LMPD properly withheld education records relating to other students under authority of KRS 61.878(1)(a), based on the students' superior privacy interest in those records as reflected in state and federal legislative enactment, 3 but improperly withheld from him records pertaining exclusively to his client as well as records that do not identify any students, including classroom schedules, lunch schedules, and photographs taken of the exterior and interior of the school. Any issues relating to disclosure of his client's medical records located in the investigative file were mooted by LMPD's agreement to provide Mr. Gordon with copies upon receipt of "specific written consent of his client's parent or guardian." 4
As noted, the incident giving rise to this appeal occurred on March 23, 2011. Mr. Gordon was retained by the student's family on April 5, 2011, and on April 13 he requested "further information about the investigation." 5 On April 26, LMPD Police Chief Robert White agreed in writing to "make [the file] available to [Mr. Gordon] under the Kentucky Open Records Act . . . once the matter has been completed."
On August 8, 2011, Mr. Gordon learned, through his private investigator, that the underlying case has been designated "inactive," 6 and on August 12 he submitted a formal open records request. LMPD responded on August 15, requesting fourteen additional days for final disposition. Following a series of written and verbal exchanges with LMPD, Mr. Gordon's request was denied in its entirety on October 4, 2011. In support of its denial, LMPD cited KRS 610.320(3), incorporated into the Open Records Act by KRS 61.878(1)(l) , both state and federal laws governing access to student education records, 7 and incorporated into the Act by KRS 61.878(1)(k) and (l), and KRS 61.878(1)(a). Shortly thereafter, Mr. Gordon initiated this appeal, questioning "the bizarre and inconsistent actions of the LMPD" and characterizing the exceptions upon which the agency relied as "paltry grounds for refusing an attorney the right to examine the records of the police investigation into his client's assault . . . ."
In correspondence directed to this office after Mr. Gordon submitted his appeal, LMPD elaborated on its position. LMPD acknowledged that Chief White misspoke when he advised Mr. Gordon that the file would be released to him and that it erred in delaying final disposition of his request, attributing both to its failure to consider the implications of KRS 610.320(3). It was LMPD's position that the latter statute compels protection of records identifying "child[ren] that may have been named as suspects of a public offense," and precludes simple redaction. The agency observed:
Mr. Gordon's client alleged he was assaulted by other elementary students. LMPD investigated the allegations made by Mr. Gordon's client. All alleged suspects that were investigated were juveniles and the investigative file does not contain any investigative records pertaining to any adult suspect.
In sum, LMPD defended its denial of Mr. Gordon's request on the basis of "strict adherence to the Juvenile Code provisions and protections of the confidentiality of juvenile records" as well as specific requests made by Kosair Hospital and the Jefferson County Public Schools that it maintain the statutory confidentiality of records shared for investigative purposes. While we agree that these statutes erect barriers to access as to some of the records in dispute, we do not believe the barriers are absolute as to all of those records. 8
We begin with a fundamental tenet of the Open Records Act. In
Zink v. Commonwealth, 902 S.W.2d 825, 828 (Ky. App. 1994), Kentucky's courts observed:
Our analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request. We think the Legislature clearly intended to grant any member of the public as much right to access to information as the next. [Footnote omitted.] While binding precedent has yet to clearly speak to the point, we believe that the only relevant public interest in disclosure to be considered is the extent to which disclosure would serve the principal purpose of the Open Records Act . . . . At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing.
In general, Mr. Gordon stands in the same shoes as any other open records requester. 9 While there is a compelling public interest in scrutinizing how LMPD responded to the March 23 incident involving Mr. Gordon's client, that interest must yield where one or more of the exceptions to public inspection preclude access. Conversely, the public interest must prevail when reliance on those exceptions is misplaced. We find that LMPD properly relied on KRS 610.320(3) in denying Mr. Gordon access to records in its investigative files identifying or relating to students against whom his client leveled allegations and on KRS 61.878(1)(a) in denying him access to education records relating to other students. However, we find that LMPD improperly relied on KRS 610.320(3) in denying Mr. Gordon access to records pertaining exclusively to his client that do not identify other students. Additionally, we find that LMPD improperly relied on FERPA, KFERPA, and KRS 61.878(1)(a) in denying him access to education records relating to his client. 10 Finally, we find that LMPD improperly relied on FERPA and KFERPA in denying Mr. Gordon access to records obtained from the JCPS that do not identify any student.
The Attorney General has opined on the public's right of access to juvenile law enforcement records on numerous occasions and in numerous contexts. These open records decisions are summarized in 99-ORD-29, a copy of which is attached hereto and incorporated by reference. In general, we have recognized that the purpose underlying the enactment of KRS 610.320(3), namely, to ensure a juvenile offender's right to a fair trial and enhance the likelihood of the juvenile's rehabilitation, 11 "is not furthered when the disputed law enforcement records relate to the juvenile victim of a crime as opposed to the juvenile who falls within the parameters of KRS 610.010(1)(a) through [(g)]." 98-ORD-123, p. 5. Thus, KRS 610.320(3) does not restrict access to records identifying the juvenile victim of a crime, but those records may be withheld under authority of KRS 61.878(1)(a) 12 when, because of the nature and circumstances of the crime perpetrated against the juvenile, his privacy interests outweigh the public's interest in disclosure.
Investigative records contained in LMPD's file that relate exclusively to Mr. Gordon's client 13 do not enjoy protection from public disclosure by virtue of KRS 610.320(3), because he cannot be characterized as a juvenile offender, but do enjoy protection from public disclosure by virtue of KRS 61.878(1)(a) in view of the nature and circumstances of the incident. To the extent his client leveled allegations against other Frayser Elementary students, and those students were investigated as suspects, records relating to them, or in which they are identified, are shielded from disclosure by KRS 610.320(3). We find no support in the law for Mr. Gordon's position that KRS 610.320(4) entitles him, as the legal representative of the injured student, to access the entire investigative file. Just as KRS 610.320(3) must be narrowly construed to make confidential juvenile offender records, so KRS 610.320(4) must be narrowly construed to permit only the juvenile offender's "family, guardian, or legal representative" to access "the law enforcement records." Mr. Gordon must be afforded access to investigative records relating exclusively to his client that are shielded from disclosure to the general public by KRS 61.878(1)(a) but cannot be afforded access to investigative records relating to other students that are shielded from disclosure by KRS 610.320(3).
By the same token, Mr. Gordon must be afforded access to any education record relating exclusively to his client but cannot be afforded access to any other education record transmitted by JCPS for investigative purposes unless those records do not identify any student. Here again, the Attorney General has expended considerable effort in analyzing the application of FERPA and KFERPA to student education records. The resulting open records decisions are reviewed in 99-ORD-217, a copy of which is attached hereto and incorporated by reference. While we question the application of FERPA and KFERPA to LMPD, insofar as it is not an educational institution governed by the state and federal laws, those laws reflect a firm legislative commitment to insuring the confidentiality of student education records and, in turn, the students' significant privacy interest in the records. As above, we recognize a compelling public interest in assessing LMPD's response to the March 23 incident, but believe that interest must yield in the face of a superior privacy interest. As noted, that privacy interest does not extend to education records relating solely to Mr. Gordon's client and requested by Mr. Gordon. Nor does it extend to records that do not identify any other student, including classroom schedules, lunch schedules, and photographs taken of the exterior and interior of Frayser Elementary. Neither FERPA nor KFERPA, by their express terms, nor KRS 61.878(1)(a) by legal interpretation and precedent, apply to records of an educational institution that contain no personally identifiable information pertaining to students, and no privacy interest attaches to such records. LMPD's refusal to provide Mr. Gordon with these records constituted a violation of the Open Records Act.
So, too, did LMPD's failure to adhere to the procedural requirements for agency response to an open records request codified at KRS 61.880(1). That statute directs all public agencies to "determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any [open records] request whether to comply with the request and [to] notify in writing the person making the request, within the three (3) day period, of its decision." Denial of an open records request must be accompanied by a written "statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " KRS 61.880(1). We do not consider Chief White's written agreement to release the investigative file to Mr. Gordon, when the investigation was concluded, binding on the agency, especially since the record on appeal contains no documentary proof of Mr. Gordon's written request. 14 Nevertheless, it is apparent that LMPD violated KRS 61.880(1) in the period between Mr. Gordon's August 12 request and its October 4, 2011, denial by repeatedly postponing final resolution of his request. 15 While there may have been confusion within LMPD concerning release of the requested records, this confusion did not relieve LMPD of its statutory obligation under KRS 61.880(1). LMPD's blanket denial of Mr. Gordon's request violated the procedural requirements of the Open Records Act. More importantly, LMPD violated the substantive requirements of the Open Records Act and the clear statement of legislative intent directing strict construction of the exceptions to public inspection. KRS 61.871.
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.
Distributed to:
Teddy B. GordonSharon L. KingTerry Geraghty
Footnotes
Footnotes
1 KRS 610.320(3) provides:
All law enforcement and court records regarding children who have not reached their eighteenth birthday shall not be opened to scrutiny by the public, except that a separate public record shall be kept by the clerk of the court which shall be accessible to the public for court records, limited to the petition, order of the adjudication, and disposition in juvenile delinquency proceedings concerning a child who is fourteen (14) years of age or older at the time of the commission of the offense, and who is adjudicated a juvenile delinquent for the commission of an offense that would constitute a capital offense or a Class A, B, or C felony if the juvenile were an adult, or any offense involving a deadly weapon, or an offense wherein a deadly weapon is used or displayed.
2 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
3 Family Educational Rights and Privacy Act, 20 U.S.C. § 1232g et seq., and Kentucky Family Education Rights and Privacy Act, KRS 160.700 et seq.
4 Mr. Gordon obtained a HIPAA release from the student's family to facilitate access to the student's medical records. That release applies to records in the custody of the "covered entity" as defined at 45 C.F.R. 160.103, Kosair Hospital, but not to the same medical records in the custody of LMPD, a public agency that is not a "covered entity" for purposes of HIPAA analysis. Because all requesters enjoy the same right of access to records in the custody of a public agency, and are subject to the same prohibitions on access, LMPD properly requested that Mr. Gordon obtain written parental consent for disclosure of medical records in its custody lest it waive the available open records exemption, KRS 61.878(1)(a), relative to other requesters seeking these records.
5 Mr. Gordon did not include a copy of this letter.
6 LMPD confirmed that the case is "open but inactive" in supplemental correspondence.
7 See note three, above.
8 Pursuant to KRS 61.880(2)(c), and to facilitate our review of the issues on appeal, on November 22, 2011, this office requested a copy of the records in dispute for in camera inspection. Our review of those records confirmed, in part, and refuted, in part, LMPD's position.
9 Mr. Gordon's client has a reduced expectation of privacy in records obtained on his behalf, and with his consent, by Mr. Gordon for the purpose of legal representation.
10 LMPD may wish to obtain a written release from the parents of Mr. Gordon's client to insure that the protections afforded by KRS 61.878(1)(a) are not compromised vis-a-vis requests for the same records submitted by other open records requesters.
11 Citing F.T.P. v. Courier-Journal and Louisville Times Co., 774 S.W.2d 444 (Ky. 1989).
12 KRS 61.878(1)(a) authorizes public agencies to withhold "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
13 Like LMPD, we do not mean to imply or not imply that Mr. Gordon's client was or was not the victim of an assault. Nor do we mean to imply or not imply that the students against whom he leveled allegations were or were not juvenile perpetrators of a crime.
14 KRS 61.880(2); 40 KAR 1:030 Section 1.
15 KRS 61.872(5) authorizes temporary suspension of the three day rule. It provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.