Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Louisville Metro Police Department ("LMPD") violated the Open Records Act in its disposition of inmate Desmond Dixon's open records request for records pertaining to his criminal conviction. For the reasons that follow, we find that LMPD initially failed to conduct a reasonable search for all responsive records but, on appeal, discharged its duties under the Act by providing the remaining responsive records, with appropriate redactions.
By a request dated December 12, 2016, Mr. Dixon asked to receive investigative records pertaining to him, including the detective file and notes, the LMPD Property Room Evidence Log, and the Crime Scene Unit log/ report. He received copies of records from LMPD on March 23, 2017, 1 but, by letter dated June 9, 2017, appealed to this office to determine if LMPD had withheld responsive records.
On appeal, Annale Renneker, Assistant Jefferson County Attorney, responded on behalf of LMPD. Ms. Rennaker explained that the Crime Scene Unit ("CSU") and Property Room keep their own files and those records were not provided to the main file, which was the file initially provided to Mr. Dixon. Ms. Renneker supplied the additional records along with her response to the appeal. LMPD did redact the "victim's birthdate, phone number, and any addresses unrelated to the incident" pursuant to KRS 61.878(1)(a).
In regards to LMPD's initial failure to provide the CSU and Property Room records, a public agency is obligated "to conduct a search that can reasonably be expected to produce the records requested" and "to advise the requesting party whether the requested record exists." 06-ORD-020 (internal quotation omitted). LMPD clearly failed to conduct a search that would reasonably have been expected to produce the records requested. As the additional records have been provided on appeal, we decline to find a violation on the part of LMPD in regards to its initial search for records.
40 KAR 1:030 Section 6 states, "If the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." This office has previously determined that "unless all records identified in an open records request are released, not just those the agency deems nonexempt, the issue before the Attorney General is not moot. " 09-ORD-007, p.5. As LMPD provided redacted records, this appeal is not moot and we must determine the appropriateness of the redactions made by LMPD.
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). In Zink , the privacy interest of injured workers in their home addresses, telephone numbers, and Social Security numbers was found to outweigh the interest of an attorney seeking the information for marketing purposes where disclosure "would do little to further the citizens' right to know what their government is doing and would not in any real way subject agency action to public scrutiny. " 902 S.W.2d at 829.
In Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky.2013), the Supreme Court of Kentucky found that "[p]rivate citizens ? have a compelling interest in the privacy of law enforcement records pertaining to them." "To implicate an individual's privacy interest, . . . the adverse repercussions of public disclosure need not be severe." Id. On the other hand, "any private interest the requester may have in the information is irrelevant." Id. at 85. In Kentucky New Era , the newspaper was seeking address, telephone, Social Security numbers, and other identifying information on crime victims, witnesses, and uncharged suspects, purportedly in the interest of assuring the public that the police department was "providing equal protection to all parts of the community." Id. at 86. While the Court found this interest legitimate, it did not agree "that that interest can only be vindicated by sacrificing the privacy interests of all those with whom the police come in contact." Id. at 86-87. Therefore, the identifying information was properly withheld.
We find nothing to distinguish this case from the result in the Kentucky New Era case. The phone numbers, addresses, and birth date of a private individual have no manifest bearing on how LMPD performed its public duties, and therefore this identifying information was properly subjected to categorical redaction under KRS 61.878(1)(a).
Mr. Dixon also requested this office to order LMPD to re-inventory the evidence and provide him with an updated copy of the evidence logs and chain of custody forms. We decline to do so as the Attorney General's Office has acknowledged that it is not the proper forum for, and cannot decide, issues other than violations of the Open Records Act for appeals initiated under KRS 61.880(2). 14-ORD-083.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
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