Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Northpoint Training Center ("NTC") violated the Open Records Act in its disposition of inmate Uriah Pasha's August 8, 2018, request for "[a] copy of the (E. O. R.) Extraordinary Occurrence Report and all documents attached thereto concerning the Incident August 5, 2018 Involving Uriah Pasha # 092028 at RHU's gate." 1 For the reasons that follow, we find no violation of the Act.
On August 14, 2018, NTC denied the Extraordinary Occurrence Report ("EOR") under KRS 61.878(1)(i) and (j) "due to it being part of an ongoing investigation and final agency action has not yet been taken." This office received Mr. Pasha's appeal on August 23, 2018.
On appeal, Mr. Pasha argues that he needs the EOR in order to file a civil action. NTC reports that it has subsequently made the EOR available to Mr. Pasha except for "pictures of the officer's injuries that include the officer's ID in each photo and a medical report involving evaluation and treatment of the officer." As a basis for these redactions, NTC invokes KRS 61.878(1)(a) and KRS 197.025(1).
KRS 61.878(1)(a) exempts from the Open Records Act:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy [.]
In Cape Publications v. City of Louisville, 147 S.W.3d 731, 734 (Ky. App. 2003) (quoting Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992), the Court of Appeals stated: "Once a protectable privacy interest is established, proper application of the Open Records Act requires a 'comparative weighing of the antagonistic interests'--the privacy interest versus the policy of openness for the public good."
"[D]isclosure of medical records or the information contained therein generally constitutes a 'clearly unwarranted invasion of personal privacy, ' and such records [may] thus be withheld on the basis of KRS 61.878(1)(a)." 09-ORD-059. This office has specifically upheld the denial of access to medical records of public employees on the basis of personal privacy. See, e.g. , 08-ORD-178. NTC states that the medical report at issue here consists of "the same type of information that a medical provider would include in a treatment note and the photos document the injury as may also be done in a medical record." Accordingly, we find the existence of a protectable privacy interest in the withheld records.
To overcome a significant privacy interest, a requestor must assert a superior countervailing public interest in disclosure. We do not find that Mr. Pasha has done so. "At its most basic level, the purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Zink v. Com., Dep't of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994). "The fact that Mr. [Pasha] may have a personal interest in obtaining the [medical records] does not equate to a preponderant interest on the part of the general public." 16-ORD-035. "It is the public's interest, and not Mr. [Pasha's] personal interest, which must be advanced by release of the disputed records." 94-ORD-45. Therefore, NTC has properly invoked KRS 61.878(1)(a) as to the medical report and photographs at issue.
Since we find the privacy exemption dispositive of this appeal, it is not necessary to adjudicate NTC's argument 2 under KRS 197.025(1). 3 We note, however, our previous ruling that a correctional facility could properly deny an inmate a copy of a facial photograph used for his own institutional ID pursuant to that subsection because it "could be used to fabricate identification, facilitate escape, or other uses that may constitute a threat to institutional security, inmates and KSP staff." 16-ORD-267. 4
In conclusion, on the basis of KRS 61.878(1)(a), we find no violation of 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 proceedings.
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