17-ORD-146

17-ORD-146

July 24, 2017

In re:        James R. May/Mercer County Sheriff’s Office

Summary:        Mercer County Sheriff’s Office initially failed to respond to open records request, but substantively was justified in redacting personal information of victims and reporting individuals pursuant to KRS 61.878(1)(a), although it improperly failed to apprise the requester of redactions or their statutory basis.

Open Records Decision

        The question presented in this appeal is whether the Mercer County Sheriff’s Office violated the Open Records Act in its disposition of James R. May’s May 8, 2017, request for a copy of a police report. For the reasons that follow, we find that the Sheriff’s Office procedurally violated the Act.

        Mr. May’s request, which he mailed on May 8, 2017, was for “one complete copy of Police Report #09-S-097 generated by Deputy Sheriff Matthew Swabey,” to include “any document of any person or persons who have signed for and received any evidence gathered by Deputy Matthew Swabey, including testimonial statement gathered by the investigating officer.”  He initiated this appeal on June 20, 2017, after having received no response.

        On June 23, 2017, Mercer County Sheriff Ernie Kelty responded to the appeal, stating in relevant part as follows:

        The Request came into my Office via U.S. Mail and was delivered over to one of my Deputies. That Deputy then forwarded the Request to the Office of the Commonwealth Attorney who returned it to the Deputy and directing [sic] him to respond. During this process apparently the open records request was put on his desk and overlooked and not responded to.

        This matter only came to my attention Friday, June 23, 2017, at which time I looked into the matter and realized we had not retained a copy of the case. I went to the Commonwealth Attorney’s Office and obtained our copy of the case and I have forwarded Mr. May a response along with my apology for the improper handling of his Request. …  The only thing omitted and not given to Mr. May were Dates of Birth, Social Security numbers and contact information for reporting person and victims.  To my knowledge this is confidential information and cannot be released.

(Emphasis added.) Sheriff Kelty’s response, also dated June 23, 2017, indicates that “all of the documents this office has responsive to [the] request” are enclosed. It does not, however, indicate what material was redacted or the grounds upon which such redactions were made.

        KRS 61.880(1) requires a public agency to make a disposition of a request for public records within three days, excluding weekends and legal holidays. Furthermore, the same subsection provides:

An agency response denying, in whole or in part,, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.

The agency’s untimely response, along with its failure to identify to Mr. May the information redacted from the records and to cite and explain the applicable exception to the Act, constitutes a procedural violation of KRS 61.880(1).

        In the context of this appeal, the Sheriff’s Office has identified the information redacted and described it as “confidential.”  While no statutory provision is cited in support of this “confidentiality,” it is well established that these specific types of information in law enforcement records are generally subject to categorical redaction under KRS 61.878(1)(a).

        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.

        The Court in Kentucky New Era determined that the City of Hopkinsville’s redaction policy could be

referred to as a “categorical” one. The City has determined with respect to a particular, recurring class of information — information identifying private citizens in its police reports — the privacy/public-interest balancing so characteristically tips in one direction — privacy — that it is appropriate to withhold, categorically, information in that class.”

Id. at 88. With regard to “discrete types of information routinely included in an agency’s records and routinely implicating similar grounds for exemption,” the Court held, “the agency need not undertake an ad hoc analysis of the exemption’s application to such information in each instance, but may apply a categorical rule.”  Id. at 89. With regard to the types of information at issue in Kentucky New Era, the Court found that the privacy interest “will almost always be substantial, and the public’s interest in disclosure rarely so.”  Id.  Therefore, the categorical redaction of this identifying information was upheld.

        We find nothing to distinguish the redactions of personal information in this case from the result in Kentucky New Era. Cf. 15-ORD-093 (recognizing birth dates of private individuals as also subject to categorical redaction). Social Security numbers, dates of birth, and addresses and phone numbers of private individuals have no manifest bearing on how the Sheriff’s Office performed its public duties, and therefore this information was properly subjected to categorical redaction under KRS 61.878(1)(a). Therefore, we find no substantive violation of the Open Records Act in regard to these redactions, although a considerable number of procedural violations of KRS 61.880(1) were committed.¹  

        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.

                                                Andy Beshear

                                                Attorney General

                                                James M. Herrick

                                                Assistant Attorney General

#248

Distributed to:

James R. May, #095096

Ernie Kelty, Sheriff

Ted Dean, Esq.