Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Justice and Public Safety Cabinet properly denied Racquel Hatfield's January 6, 2014, request for records "associated with the autopsy of Phil Glodo (Case No. ME-C-2007-602)" performed by the Kentucky Medical Examiner. The Office of the Medical Examiner, which is attached to the Justice and Public Safety Cabinet, released a number of records responsive to Ms. Hatfield's numbered request nine for records documenting "communications between the Kentucky Medical Examiner's Office and law enforcement personnel or the Commonwealth's Attorney's Office in connection with Glodo's death or autopsy, " but denied the eight numbered requests preceding it.
With reference to numbered requests one, two, three, and eight, the Cabinet denied the existence of responsive records. With reference to numbered requests four, five, six, and seven, the Cabinet invoked KRS 61.878(1)(a), explaining:
The records you seek contain information of a personal nature that would constitute a clearly unwarranted invasion of personal privacy. Given that the information you have requested is highly personal and would be an invasion of the privacy of the victim's family, we cannot provide you with the radiology reports and films, toxicology report, diagrams, photographs, or detailed records of procedures completed for the autopsy you request.
Based on a line of open records decisions dating back to 1981, and recognizing that, in general, "a deceased person has no personal privacy rights and the personal privacy rights of living individuals do not reach to matters concerning deceased relatives," 1 as well as those decisions recognizing the public's right of access to autopsy reports and related records, 2 we disagree. The overwhelming weight of legal authority does not support the Cabinet's position.
In supplemental correspondence directed to this office after Ms. Hatfield initiated her appeal, the Cabinet cited 05-ORD-075 arguing that "[t]he victim's family has a privacy interest that controls in this situation," but acknowledging the nonexistence of any evidence that Mr. Glodo's family has asserted a privacy claim or objected to disclosure of the records identified in Ms. Hatfield's request. In 05-ORD-075, the Attorney General affirmed the agency's denial of a request for autopsy photographs on the basis of KRS 61.878(1)(a). At page 8 of that decision, we applied the "comparative weighing of antagonistic interests" analysis established by the
Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992), weighing the competing public interest in reviewing the autopsy photographs "to ensure that the State Medical Examiner properly executed her statutory function" against the privacy interests of the decedent's surviving family members. We held that because "the public interest was effectively promoted by release of the written autopsy reports, . . . [that interest must] yield to [the decedent's] surviving family members' privacy interest in the nondisclosure of their relative's autopsy photographs. " 05-ORD-075, p. 8. We do not believe 05-ORD-075 is controlling for the following reasons.
05-ORD-075, upon which the Cabinet chiefly relies, was appealed to the Franklin Circuit Court where it was reversed. Blaine J. Edmond, III, et al. v. Justice and Public Safety Cabinet , Civil Action No. 05-CI-00742 (Franklin Circuit Court, Nov 17, 2005). Although the court's opinion does not represent binding legal authority for the Commonwealth, it is instructive to note that the court focused on the absence of evidence "that any family members of the victim . . . have voiced any objection over the release of the autopsy photos." Id. at 3. The record in this appeal is also devoid of evidence that Mr. Glodo's surviving family members have objected to disclosure of the disputed radiology reports and films, toxicology report, diagrams, photographs, or related auto pay records. 3 Although not entirely controlling on the issue of the public right of access to autopsy and related records, proof of a heightened privacy interest supported by the surviving family members' objections to disclosure, will be considered in determining whether the public's interest must yield to the family members' privacy interest. To the extent 05-ORD-075 suggests otherwise, that open records decision is withdrawn. In the absence of a substantiated privacy interest, that is a privacy interest supported by clearly expressed familial opposition to disclosure coupled with circumstances corroborating a heightened privacy interest, we are foreclosed from ignoring thirty-three years of precedent.
As noted, in 1981 the Attorney General recognized that "a deceased person has no personal privacy rights and the personal privacy rights of living individuals do not reach to matters concerning deceased relatives." OAG 81-149, p. 1. In subsequent open records decisions, we reaffirmed this position declaring that "[r]elatives of the deceased persons cannot claim any right of privacy concerning their deaths. 'There is no recognized cause of action for invasion of a relational right of privacy . . . .'" OAG 82-590, p. 1, citing
Weller v. Home News Publishing Company, 112 N.J. Super. 502; 271 A.2d 738 (1970) and
McLean v. Rogers, 100 Mich. App. 734, 300 N.W.2d 389, 391 (1980) ("The right of privacy is a personal one ending with the death of the person to whom it is of value. It may not be claimed by his estate or by his next of kin" ).
In OAG 86-31, the Attorney General rejected the Kentucky State Police Department's denial of a request for photos taken at an accident scene that contained images of a corpse. With reference to KSP's invocation of KRS 61.878(1)(a), we observed:
[A] deceased person 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 where those records pertain to persons who are deceased as their right of privacy terminated at the time of their death. A deceased person has no personal privacy rights and the personal privacy rights of living persons do not extend to matters concerning deceased relatives. [Citations omitted.]
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."
OAG 86-31, p. 2. Nevertheless, we left the door ajar for those "occasions when there is a legitimate reason to prohibit the public inspection of photographs" or other records relating to, or containing images of, deceased persons. Id.
In 00-ORD-162, the Attorney General was presented with "legitimate reasons" for approving nondisclosure of records relating to and containing images of a deceased person under authority of KRS 61.878(1)(a) and in deference to the privacy interests of the victim's surviving family members. Citing
National Archives and Records Administration v. Favish, 541 U.S. 157 (2004) (affirming privacy right of surviving family members in photos taken at the scene of an apparent suicide) ;
New York Times Company v. National Aeronautics and Space Administration, 782 F.Supp. 628 (D.C. Cir. 1991) (recognizing privacy interests of families of space shuttle Challenger explosion victims in voice recordings of moments leading up to explosion) ,
State v. Rolling, 1994 WL 722 891 (Fla. Cir. Ct.) (recognizing a right of privacy for relatives of murder victims in graphic photographs of victims' bodies), and OAG 90-56 (recognizing privacy rights of surviving victims of twelve hour hostage siege that culminated in murder/ suicide in tape recording of hostage negotiation), we held that the public's interest in disclosure of records related to a murder, attempted rape, and suicide must yield to the privacy interests of a surviving family member who had come forward to vigorously oppose release of photographs depicting her deceased husband. 4 In 05-ORD-075, upon which the Cabinet places heavy reliance, we omitted the latter requirement, and, as a consequence, our decision was reversed on appeal.
Based on 05-ORD-075, and "concerns expressed by families in [the Medical Examiner's] prior work," the Cabinet "believes that it has an obligation to assert the privacy interest for families," and to withhold autopsy and related records unless the requester obtains "an authorization from the executor or next of kin" for release of the records. Its position runs contrary to the weight of legal authority addressing the privacy rights of the dead, and their surviving family members, as well as the basic tenants of the Open Records Act, recognizing that "free and open examination of public records is in the public interest" 5 and "exhibiting a general bias favoring disclosure. " 6 The Cabinet has not, in this case, met its statutorily assigned burden of proof 7 in denying Ms. Hatfield's request for records relating to Mr. Glodo's autopsy, but has, instead, relied on a policy or practice much like the policy we expressly rejected in OAG 86-31 (holding that a "public agency cannot invoke the privacy exemption to public inspection to impose a uniform ban on all requests for photographs revealing corpses, since, generally, privacy is a personal right which dies with the deceased person. ") We therefore find that the Cabinet violated the Open Records Act in denying Ms. Hatfield's request.
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:
Racquel HatfieldDeanna F. OsborneAmy V. Barker
Footnotes
Footnotes
1 OAG 81-149, p. 1.
2 OAG 82-458.
3 In its response to Ms. Hatfield's request, the Medical Examiner agreed to release the x-ray to Ms. Hatfield "provided a signed authorization by the executor of the estate or legal next of kin of the decedent." The Office of the Medical Examiner, as well as the Justice Cabinet, must bear in mind that it is the public agency that is assigned the burden of proving that a record is exempt and not the requester's burden to prove that the record is not exempt because no one objects to disclosure. KRS 61.880(2)(c).
4 The facts giving rise to 00-ORD-162 were particularly heinous. The family's home was invaded, and the husband and father murdered, while his wife and their children slept. The wife was then abducted and sexually assaulted, after which the perpetrator committed suicide in her presence.
5 KRS 61.871.
6 KY Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992).
7 KRS 61.880(2)(c).