Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Georgetown Police Department properly relied on KRS 61.878(1)(a) in partially denying Georgetown News-Graphic reporter Dan Adkins' September 4, 2012, request for "copies of or access to any records, documents, notes and other materials related to any open and/or closed investigation regarding Kentucky Lighting & Supply in Georgetown specifically related to theft, fraud and/or embezzlement conducted from July 1, 2011, through the present date." For the reasons that follow, we conclude that the Department did not substantively violate the Open Records Act.
Mr. Adkins addressed his September 4 request to Chief Michael Bosse of the Georgetown Police Department. An initial response from Captain Robert Swanigin dated September 7, 2012, stated as follows:
Additional time is needed to review these records to determine whether any exemptions to disclosure apply.
A response, and any responsive records, will be available in my office on September 11, 2012 at 4:00 p.m. If the response is available prior to that time, I will notify you.
We note that at this point a procedural violation of KRS 61.880(1) occurred when a decision regarding the disposition of Mr. Adkins' request was not made within three (3) days exclusive of weekends and legal holidays. The exception in KRS 61.872(5) does not apply:
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.
There is no indication here that the records were "in active use, in storage or not otherwise available." Furthermore, the only explanation given for the further delay was that the records had to be reviewed and redacted. The need to redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request and has not been found to be, in and of itself, a reason for additional delay. Cf. 10-ORD-138 ("the record on appeal, being devoid of any detailed explanation for why the retrieval and redaction should take so long, does not support the [agency's] position that the delay is necessary"). 1
On September 11, 2011, Captain Swanigin sent Mr. Adkins the requested records, with certain exceptions:
1. Personal information concerning individuals has been redacted including names, social security numbers, addresses, dates of birth, gender and sex. 2 These redactions have been made in accordance with KRS 61.878(1)(a) since the requested records contain "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, " and with KRS 170.150(2)(b) 3 since the requested records contain "Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest." See also, Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government, 297 S.W.3d 579 (Ky.App. 2009). For the same reasons, a DVD of the uncharged suspect's statement is exempt.
2. The names of individuals who are customers of Kentucky Lighting have been redacted as confidential or proprietary information pursuant to KRS 61.878(1)(c)1.
The Georgetown News-Graphic appealed the disposition to the Attorney General on September 25, 2012, through a letter from its publisher and president, Mike Scogin, stating as follows:
This appeal involves the criminal investigation of an individual that we believe may be an elected public official and the actions and conduct of the police department in the handling of this investigation and conduct of the city administration in which records have been withheld following the closing of this investigation.
The suspect is described in police reports as a manager of a local business, Kentucky Lighting and Supply. A current city council member was manager of that business for many years until he left the job in July, days before a police investigation was started. The police report states the business owners had discovered discrepancies with inventory and missing cash that possibly amounted to tens of thousands of dollars. Following an internal investigation that went back six months, the business sought the help of the Georgetown police. The police investigated and reportedly were ready to discuss possible criminal charges with the victim when the case was abruptly closed.
The newspaper has been informed that the target of this investigation is a member of the city council. A primary reason for filing this appeal is to confirm with absolute certainty the identity of the suspect in the investigation.
The council member in question is seeking reelection in November and is a city council leader. He is a member of the council seated when both the city attorney and the police chief were hired and he has served as a liaison between the council and the police department. At minimum, this council member has a working relationship with all the decision makers in this process.
?
The City's response to our Open Records request is inadequate because it fails to identify all the materials being withheld, what exceptions are being used or why these exceptions apply?
If the suspect proves to be a city council member, then he is by his own choosing a public figure and forfeits certain expectations of privacy. As for the "wholesome public interest" what is more wholesome than the trust and honor of the public this official and these agencies have been elected to serve? The nature of this investigation could reflect directly upon the elected official's personal character and integrity and ability to complete a job in a trustworthy manner. There is no "public interest" in withholding the information.
By letter dated October 10, 2012, from City Attorney Logan B. Askew, the City of Georgetown incorporated Captain Swanigin's response and added the following information:
After submission of the City's response and redacted documents, Mr. Scogin requested a meeting with Georgetown Police Chief Mike Bosse and me to discuss the matter. The meeting occurred on September 17, 2012 in Chief Bosse's office. ?
At that time, we advised that the first page of the police report indicates that the case file was closed since prosecution was declined which Mr. Scogin and Mr. Adkins admitted they had overlooked. Chief Bosse then advised how and why the police investigation was closed. After conducting the interviews described in the redacted report, a police investigator explained to Kentucky Lighting and Supply, Inc. ("KLS") representatives the process for initiating a criminal proceeding. The investigator scheduled a meeting for KLS and him at the County Attorney's office for KLS to sign a criminal complaint. When a KLS representative did not confirm the meeting date and time, the police investigator contacted KLS and was advised that KLS was not going to prosecute. Chief Bosse then contacted KLS to confirm this information. Adrian Mendiondo, KLS counsel, called Chief Bosse and confirmed KLS' position. Chief Bosse then contacted Commonwealth Attorney Gordie Shaw about the matter who advised that a prosecution could not occur due to KLS' position.
Subsequently, Mr. Askew provided a letter from Chief Michael Bosse dated October 22, 2012, advising in part as follows:
Lieutenant Don Mather informed me during a staff meeting that he had made arrangements for Kentucky Lighting & Supply ("KLS") representatives to meet him at the County Attorney's Office for the purpose of moving forward with a criminal complaint for theft. When the representatives did not contact him in reference to the meeting, Lt. Mather contacted KLS and was informed that KLS and the suspect were attempting to reach an agreement. Lt. Mather explained to KLS that this action would negate further criminal investigation and the KLS representative acknowledged that this was understood.
After being informed of this, I called KLS and asked to speak to the owner. I was told that the owner would call me back. A short time later, while still in my staff meeting, I received a call from attorney Adrian Mendiondo who informed me that he represented KLS. Mr. Mendiondo assured me that KLS was making an informed decision and that the parties had reached an agreement, upon advice of counsel. Mr. Mendiondo acknowledged that the agreement negated any further criminal investigation and prohibited KLS from later pursuing criminal charges. He advised that KLS was satisfied with the Police Department's actions and that he would relate this to others, but that he was restricted about what he could say due to a confidentiality agreement between the parties. Given Mr. Mendiondo's comments, I was convinced that KLS did not want the Police Department to take any further steps as it was satisfied with the private agreement.
Shortly after speaking to Mr. Mendiondo, I called Commonwealth Attorney Gordie Shaw and explained the situation to him. Mr. Shaw confirmed that there was nothing else the Police Department could do if KLS agreed to the course of action described by Mr. Mendiondo. In view of the above, the Police investigation was closed.
KRS 61.878(1)(a) excludes from the application of 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 public interest in open records has been analyzed as follows by the Kentucky Court of Appeals:
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. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). The privacy interest in this appeal, as the Georgetown Police Department points out, is quite similar to the facts in
Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government, 297 S.W.3d 579 (Ky. App. 2009), which also involved an individual suspected of a crime but never charged.
In Lexington H-L Services, a University of Kentucky basketball player had been accused of committing a rape. Although the matter was investigated by police, the accused athlete was never arrested or charged with a crime. In response to a reporter's request for investigative records, the urban-county Division of Police had redacted the name of the suspect as well as the name of the victim, pursuant to its policy that in such cases "the suspect still maintains an expectation of privacy" under KRS 61.878(1)(a). Id. at 581. The court first concluded "it is clear that the identity of a rape suspect constitutes information of a personal nature." Id. at 584. Noting the countervailing public interest in disclosure for purposes of monitoring the government's execution of its functions, the Court of Appeals then conducted the following analysis:
When balancing these competing interests, it must be acknowledged that disclosure of a rape suspect's identity would certainly constitute an invasion of personal privacy and would most likely subject the suspect to a certain amount of public scorn, ridicule, and possibly harassment. [ Footnote 6: "This is contrasted with a circumstance where an individual has been arrested, charged and indicted for a sexual offense. In such case, the individual's identity would clearly be subject to public disclosure. "] On the other side of the scale, the Herald-Leader maintains that the public has a legitimate interest in monitoring police conduct and, in particular, in "ensuring that the ? investigation was handled competently, completely and without favoritism or bias." ? However, the Herald-Leader has failed to demonstrate how disclosure of this particular suspect's identity would further such an interest under the specific facts of this case. Pursuant to its open records request, the Herald-Leader was provided some 900 pages of documents concerning the police investigation into the alleged rape. The Herald-Leader has never established or even maintained that these documents were insufficient to provide an adequate basis to fully investigate police conduct. Rather, the Herald-Leader simply maintains that disclosure of the rape suspect's identity would generally promote the public interest of monitoring police conduct. [ Footnote 7: "Our Supreme Court has recognized 'the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity[.]' Ky. Bd. of Exam'rs v. Courier-Journal, 826 S.W.2d 324, 328 (Ky. 1992).]
When balancing the rape suspect's intrinsic personal privacy interest against such nebulously asserted public interest, we conclude that disclosure of the rape suspect's identity would constitute a clearly unwarranted invasion of personal privacy. Succinctly stated, we hold the circuit court properly exempted from disclosure the rape suspect's identity under the personal privacy exemption of KRS 61.878(1)(a). We caution that our holding is strictly limited to this case and that judicial decisions concerning such open record requests are to be made on a "case-by-case basis." [ Footnote 8: "This opinion should not be misconstrued as holding that a rape suspect's identity would never be subject to disclosure when a police investigation is cleared by exception. There may exist facts justifying disclosure thereof; for example, in a case where a full investigation into police conduct could only be accomplished by disclosure of a suspect's identity. However, in the case sub judice, the Herald-Leader has failed to establish that disclosure of the suspect's identity was necessary to fully investigate police conduct. "] [Citations omitted.]
Id. at 584-85.
With regard to the present appeal, we believe the Court of Appeals' preliminary ruling in Lexington H-L Services that the identity of an uncharged suspect "constitutes information of a personal nature," and that its disclosure could "subject the suspect to a certain amount of public scorn, ridicule, and possibly harassment," would apply to an allegation of felony theft as well as to an allegation of rape. Therefore, the interest in privacy exists and must be balanced against the public interest in disclosure of the suspect's identity. We must first, however, determine the strength of the privacy interest.
"[W]hen an individual enters on the public way, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent."
Zink v. Com., Dept. of Workers' Claims, supra, 902 S.W.2d at 828. The Lexington H-L Services case, cited by the Police Department, is not the only time the tipping point for this forfeiture of privacy has been associated with the bringing of formal criminal charges. In OAG 91-35, we opined that investigation records of the Attorney General's Medicaid Fraud Division were subject to the privacy exemption as long as the individuals investigated were not charged with a crime. We cited the following language from a federal court decision:
The decision to prosecute an individual for a crime is attended by consequences beyond the risk of conviction. When the individual or the crime has attracted general notoriety, institution of proceedings typically provokes wide spread speculation attended by at least some damage to the reputation of the individual involved. Common experience teaches that this speculation is not quieted when, and if, a jury finally announces its verdict. Typically, the decision not to prosecute insulates individuals who have been investigated but not charged from this rather significant intrusion into their lives.
Fund for Constitutional Govt. v. Natl. Archives & Records Service, 656 F.2d 856, 864 (D.C. Cir. 1981). In 09-ORD-156, we commented: "This analysis suggests that if any bright line demarcates a heightened privacy interest, it is the line between being charged and not being charged." Following this reasoning, the heightened privacy interest would be present in this appeal because the suspect was not charged.
It is still necessary, however, to determine the weight of the public interest in disclosure in order to balance it against this heightened privacy interest. We have noted previously that, if a public official is the subject of a police report, "that official forfeits, at least to some extent, his privacy interest, and the public's interest 'in seeing that alleged criminal activity is thoroughly investigated and vigorously prosecuted without favoritism or bias,' OAG 91-35, p. 6, is correspondingly heightened. " 05-ORD-224. In this instance, however, the identity of the suspect is the very matter at issue, so the holding in Lexington H-L Services, supra, must also be taken into account. In order for the News-Graphic to prevail under the Lexington H-L Services standard, the interest in disclosure must be supported by a demonstration that "disclosure of this particular suspect's identity" is essential "to provide an adequate basis to fully investigate police conduct. " Lexington H-L Services, supra, 297 S.W.3d at 585.
The News-Graphic presents, in some ways, a strong case for distinguishing the current factual situation from Lexington H-L Services. The uncharged suspect, rather than being a student athlete, is believed by the newspaper to be a member of the City Council, who was in office when the current city police chief was hired, and who has at one time "served as a liaison between the council and the police department. " Such an individual, unlike a basketball player, would potentially be in a position to exercise undue influence over the investigative process. Indeed, had the Police Department's investigation mysteriously failed to take place, or abruptly terminated without reasonable explanation, we might be inclined to accept the News-Graphic's argument that the Department's conduct could not be adequately evaluated in this case without disclosure of the uncharged suspect's identity.
This, however, has not been shown to be the case. The Georgetown Police Department has explained that the cessation of activity was caused by the refusal of Kentucky Lighting and Supply ("KLS") to make a formal criminal complaint. We are also informed that the police chief spoke to the attorney for KLS, who verified that KLS was not going to sign a complaint, and then contacted the Commonwealth's Attorney for advice and was told that no further action could be taken under these circumstances. There is nothing in the record to raise a suspicion that the police were unduly influenced by the suspect, or to suggest that they failed to take action for hidden reasons.
The News-Graphic is understandably concerned with whether the Police Department might have closed its investigation due to improper influence by a city council member. Yet the fact that KLS was unwilling to prosecute would have led to the same course of action regardless of who the suspect was. With no complaining witness, a charge could not be brought. RCr 2.02. Given these facts, which have not been contradicted, we do not find that disclosure of the suspect's identity is necessary, under the Lexington H-L Services standard, for an adequate appraisal of the conduct of the police investigation. Therefore, the records, insofar as they would reveal the suspect's identity, were properly redacted under KRS 61.878(1)(a).
Names of witnesses interviewed by the investigating officer were likewise redacted as "[p]ersonal information concerning individuals." Mr. Askew states, in a letter dated November 6, 2012, that "the witnesses are KLS employees who submitted to police questioning." We believe the same heightened privacy interest attaches to these individuals, who had incidental contact with the Georgetown Police Department during this investigation but were never charged with any crime. Since the redacted police report already contains the substance of the witness interviews, the minimal addition of the names of the individual employees interviewed would not significantly serve the public interest in monitoring the Department's execution of its official functions. See
Zink v. Com., supra, 902 S.W.2d at 829 ("the purpose of disclosure ? is not fostered however by disclosure of information about private citizens ? that reveals little or nothing about an agency's own conduct"). Therefore, we conclude that the witnesses' names were also properly redacted.
KRS 17.150(2)(b), also cited by the Department, provides that "portions" of "investigative reports maintained by criminal justice agencies ? may be withheld from inspection if the inspection would disclose [i]nformation of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest." Since we find KRS 61.878(1)(a) dispositive of the privacy issues in this appeal, we do not address the applicability of KRS 17.150(2)(b).
We next address the Police Department's redaction of the names of individual customers of KLS pursuant to KRS 61.878(1)(c)(1). This subsection exempts "records confidentially disclosed to an agency or required by an agency to be disclosed to it, generally recognized as confidential or proprietary, which if openly disclosed would permit an unfair commercial advantage to competitors of the entity that disclosed the records." We have consistently interpreted this exemption as containing three separate issues on which the public agency has the burden of proof. ( See 05-ORD-155 and authorities cited therein.) The record does not show that the Department established, or even alleged, all three prongs of the test. Since, however, the "names of individuals who are customers," redacted pursuant to this subsection, were presumably among the "[p]ersonal information concerning individuals ? including names" redacted pursuant to KRS 61.878(1)(a), we consider it unnecessary to address this argument.
On October 23, 2012, Mr. Askew supplemented the Georgetown Police Department's response to this appeal with the following:
In the City's initial response to Mr. Scogin, we omitted to reference as exempt from disclosure four documents, one for each interviewee, in the police report which were generated from the LINK (Law Information Network in Kentucky) system. It is standard operating procedure to generate LINK system reports in any police investigation. These documents, which are limited to driver's license information, including the interviewees' names, addresses, social security numbers, and other identifying information, are exempt from disclosure pursuant to KRS 61.878(1)(l) and KRS 17.150(4).
The LINK system is part of the "centralized criminal history record information system" established by KRS 17.151. KRS 17.150(4) provides, in part, that "[c]entralized criminal history records are not subject to public inspection. " KRS 61.878(1)(l) exempts from public inspection "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Although the Police Department should have mentioned these records and asserted this exemption in its initial response to Mr. Adkins, we recognize the exemption's substantive application in this case and find that the Department was not required to disclose LINK reports under KRS 17.150(4) as incorporated into the Open Records Act by KRS 61.878(1)(l).
In conclusion, we find no substantive violation of the Open Records Act. A procedural violation of KRS 61.880(1) occurred when the Georgetown Police Department failed to justify its delay beyond three business days in responding to an open records request according to the terms of 61.872(5).
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 proceedings.
Distributed to:
Mr. Mike ScoginCapt. Robert SwaniganLogan B. Askew, Esq.
Footnotes
Footnotes
1 From the redacted records turned over to Mr. Adkins, it is evident that this file was not so voluminous as to require an extraordinary amount of time for redaction.
2 It appears that this should have read "race and sex."
3 This appears to be an intended reference to KRS 17.150(2)(b).