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 Kentucky State Police (KSP) properly relied on KRS 61.878(1)(a) in denying Lauren Hanson's April 26, 2013, request for a copy of a toxicology report on a named individual. For the reasons that follow, we conclude that the KSP's reliance on the cited exemption was not adequately supported.
Ms. Hansen, Assignment Manager for television station WBKO in Bowling Green, made her April 26 request for:
any & all records, reports, test results or any other documentation whatsoever of any & all tests or other examinations including, without limitation, toxicology, blood alcohol, or breath test taken from Brandon Bradshaw or Thomas Brown on or about 2-26-13 to on or around 3-2-13 or resulting from the Kentucky State Police's Investigation of the shooting incident on 2-26-13.
The KSP received the request on April 29, 2013, and responded with a letter from records custodian Emily M. Perkins dated May 2, 2013. Ms. Perkins stated:
Your request is respectfully denied pursuant to KRS 61.878(1)(a), as the public disclosure of this report would constitute an unwarranted invasion of personal privacy. Should you obtain a notarized authorization form signed by the subject (or representatives of the estate if the subject is deceased) of the toxicology report, you may submit this form with another request for those reports.
Ms. Hanson initiated an open records appeal on May 13, 2013, stating as follows:
Pursuant to KRS 61.880(2)(a), WBKO in Bowling Green hereby requests a review of the Kentucky State Police's denial of WBKO's request to inspect the toxicology results of Brandon Bradshaw. 1 ?
On February 26, 2013, Mr. Bradshaw was involved in a road rage incident in Bowling Green which resulted in his death. He was shot by an off-duty court security officer after police say he pulled a gun on the officer. The grand jury returned a no true bill with respect to any allegations as to conduct of the off-duty court security officer which has been a source of great controversy in the Bowling Green community.
Subsequently, WBKO has learned that Mr. Bradshaw may have been under the influence of illegal drugs at the time of his death, which may have contributed to his actions on the day of the shooting. As such, we have requested the toxicology report obtained by KSP in furtherance of their investigation of this incident.
Given the criminal investigation into Mr. Bradshaw's death and the nature of the information we have requested, we do not believe that our request is an unwarranted invasion of privacy. We believe that the public interest in the events leading up to the shooting on February 26, 2013 and the subsequent investigation into these events, including any records indicating whether or not Mr. Bradshaw may have been on illegal drugs, outweigh any potential privacy interest in nondisclosure.
Ms. Perkins responded to the appeal on May 17, 2013, arguing that "the subject of the report was not charged with a crime, nor would he have had an opportunity to challenge the results of the testing in a court of law due to his passing." She further referred to an affidavit from Mr. Bradshaw's widow requesting that the toxicology records not be released. 2
On June 5, 2013, we decided 13-ORD-085 (copy attached), which concerned another request from news media for the identical KSP records at issue here. We determined in that appeal that "the compelling public interest in ensuring that KSP properly discharged its duty to thoroughly investigate the officer involved shooting that resulted in Mr. Bradshaw's death outweighs the privacy interests asserted." Seeing no factual or legal grounds upon which to distinguish 13-ORD-085, we hereby adopt its reasoning as the basis for our decision in the present appeal. Accordingly, we find that the KSP improperly relied upon KRS 61.878(1)(a) and must release the toxicology records on Mr. Bradshaw to Ms. Hanson.
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.
Enclosure
Distributed to:
Ms. Lauren HansonMs. Emily M. Perkins
Footnotes
Footnotes
1 Since it does not appear that toxicology records on Thomas Brown are at issue in this appeal, our decision is concerned only with the records pertaining to Mr. Bradshaw.
2 Although the affidavit does not appear in the record of the present appeal, we presume it to be the same affidavit provided by the KSP in support of its position in 13-ORD-085.