Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in its disposition of Lawrence Trageser's October 11, 2017, request to inspect "the KSP Investigative file on former Taylorsville Police Officers Todd Walls, involving extortion by Joshua Phillips and Dee Bowman." For the reasons that follow, we find that the KSP procedurally violated the Act.
Mr. Trageser attached to his open records request "a news story and arrest records confirming the case was handled by KSP." KSP responded on October 17, 2017, that "a search of Kentucky State Police Records was conducted and no records were found." Mr. Trageser initiated this appeal on October 30, 2017, arguing that "KSP's denial of the records is neither reasonable or believable," since the uniform citations he supplied to KSP state that the arresting officer was Trooper Hedges of KSP Post 12.
On November 3, 2017, KSP Staff Attorney David Abner advised: "Upon receipt of the appeal, the Kentucky State Police further reviewed the status of the request and determined that these records are available. KSP will be producing a copy of the investigation, as it exists, once it has been received." No explanation was given for why KSP had previously failed to find any responsive records. A public agency responding to an open records request must "expend reasonable efforts to identify and locate the requested records." 95-ORD-96. This entails "a search using methods which can reasonably be expected to produce the records requested." Id. (quoting Cerveny v. Central Intelligence Agency, 445 F.Supp. 772, 775 (D. Col. 1978)). Since the investigative records must have existed in October 2017, as the suspects were arrested and charged in 2013, we conclude that an inadequate search was performed at the time of Mr. Trageser's request.
In response to an inquiry from this office, KSP subsequently advised that the records were finally sent to Mr. Trageser on November 16, 2017, more than a month after his initial request. KRS 61.880(1) requires a public agency to make a final disposition of a request for public records with three days, excluding weekends and legal holidays. The only statutory exception to this rule is KRS 61.872(5), which permits additional time if "the public record is in active use, in storage or not otherwise available" and "a detailed explanation of the cause is given for further delay," along with "the place, time, and earliest date on which the public record will be available for inspection." Since KSP did not attempt to invoke KRS 61.872(5) or comply with its requirements, we necessarily find that the records were untimely provided in violation of KRS 61.880(1).
In its November 16, 2017, letter to Mr. Trageser, KSP Staff Attorney Cody Weber explained the material that was withheld:
Certain information (DOB, SSN, address, phone numbers, etc.) contained in this report has been redacted pursuant to KRS 61.878(1)(a), as disclosure would constitute an unwarranted invasion of personal privacy. Further, one photograph has been redacted pursuant to KRS 61.878(1)(a), as disclosure would constitute an unwarranted invasion of personal privacy. In addition, JC-3 forms have been removed from the file pursuant to KRS 620.050(5), which states that CQAs (Continuous Quality Assessment) and all materials obtained by the cabinet in the course of their investigation shall remain confidential.
KSP provided a telephone number for the Cabinet for Health and Family Services in the event Mr. Trageser should wish to request the JC-3 forms from that agency.
On November 22, 2017, KSP clarified that the redacted data consisted of "dates of birth, Social Security numbers, personal addresses[,] personal phone numbers[, and] individual's [ sic ] driver's operating license numbers." 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 Bd. 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., Dep't 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-095 (recognizing driver's license numbers as also subject to categorical redaction) . Social Security numbers, driver's license numbers, and personal addresses and phone numbers of private individuals have no manifest bearing on how the KSP performed its public duties, and therefore this information was properly subjected to categorical redaction under KRS 61.878(1)(a) . Therefore, we find no violation of the Open Records Act in regard to these redactions.
As to the photograph withheld by KSP, we have reviewed this record in camera pursuant to KRS 61.880(2)(c) and acknowledge the highly personal nature of its contents. As stated in one of the uniform citations supplied by Mr. Trageser, the defendants were charged with extorting money by threatening "that explicit pictures of the victim would be sent to his wife, boss, and media in attempt to ruin the victim's reputation and credibility within the community." Since this photograph is of a private and explicit nature, and has no inherent relevance to how KSP performed its duties, we find that the balance weighs in favor of the privacy interest under KRS 61.878(1)(a), and thus the photograph was lawfully withheld.
Lastly, we have reviewed the JC-3 forms in camera and verified that they constitute reports of suspected child abuse or neglect. KRS 620.050(5) provides that a "report of suspected child abuse, neglect, or dependency ? shall not be divulged to anyone" other than persons listed in several enumerated exceptions, none of which would appear to apply to Mr. Trageser. Accordingly, we find no substantive error in the withholding of the JC-3 forms. 1 Therefore, we find that KSP committed procedural violations by initially failing to conduct an adequate search for records and failing to provide records in a timely manner, but its ultimate disposition did not substantively violate the Open Records Act.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
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