Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Summary : Murray Police Department violated Open Records Act by denying access to arrest records, booking documentation, and search warrants pertaining to an individual. Department's initial response violated the Act by failing to identify any applicable exception. Identity of alleged rape victim, and specific identifying information for witnesses and uncharged individuals, may be redacted pursuant to KRS 61.878(1)(a).
Open Records Decision
The question presented in this appeal is whether the Murray Police Department ("Department") violated the Open Records Act in denying WKMS-FM News Director Matt Markgraf's July 2, 2019, request for copies of "Arrest Records, Booking Documentation and Search Warrants involving Dannis Seay from January 1, 2019 to July 2, 2019." For the reasons stated below, we find that the Department substantively and procedurally violated the Act.
According to WKMS-FM, Mr. Seay, a graduate student at Murray State University, was arraigned in Calloway Circuit Court on July 2, 2019, on a charge of first-degree rape stemming from an alleged off-campus incident occurring on or about March 22, 2019. 2On behalf of WKMS-FM, Mr. Markgraf faxed his open records request to the Department on July 2, 2019, at 6:32 p.m. The Department's response, postmarked July 9, 2019, 1stated, without further explanation, that the records "cannot be released due to the case still being open and the investigation ongoing." This office received Mr. Markgraf's appeal on July 15, 2019.
KRS 61.880(1) requires a public agency's response to an open records request to "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." As the Department's response did not include any of this required information, the Department procedurally violated the Open Records Act by making a deficient response. 16-ORD-211.
In its response to the appeal on July 19, 2019, the Department added statutory references, arguing "that the requested documents are part of an ongoing law enforcement action and the premature disclosure of same would be harmful to the Department as the action in [ sic ] not complete. See KRS 61.878(h) [ sic ] and further the requested information is of a personal nature and the public disclosure of same would clearly constitute an unwarranted invasion of the victim's personal privacy. See KRS 61.878(a) [ sic ]." Additionally, the Department asserted that "disclosure of the requested information may constitute a violation of the CLERY [ sic ] Act, the Violence Against Women Act and potentially FERPA."
KRS 61.878(1)(h)
KRS 61.878(1)(h) permits the nondisclosure of:
In
406 S.W.3d at 851 (emphasis added). Thus, a concrete, non-speculative risk of harm must be attributed to the release of the particular records at issue.
The Department does not attempt to make this showing, but merely paraphrases the statute by stating in vague terms that the release of information "would be harmful." This "argument is generic and could equally be applied to 'anything from a law enforcement file'; that is exactly what the Supreme Court indicated was not sufficient under KRS 61.878(1)(h)." 17-ORD-213 (quoting City of Ft. Thomas , 406 S.W.3d at 852). Under these circumstances, we cannot find that the Department has met its burden of sustaining its denial of the request pursuant to KRS 61.878(1)(h). 18-ORD-177.
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 courts, as well as this office, have affirmed the redaction of names and personal identifiers of sexual offense victims from police records under KRS 61.878(1)(a).
Cape Publications v. City of Louisville , 147 S.W.3d 731 (2003); 02-ORD-36. As this appeal concerns a charge of rape, we find no distinction from the facts in Cape Publications . Therefore, the Department may redact the name and other personal identifying information of the alleged victim. Additionally, identifying information for any witnesses or uncharged suspects, such as home addresses, telephone numbers, driver's license numbers, and Social Security numbers, is subject to categorical redaction pursuant to KRS 61.878(1)(a) under
Kentucky New Era, Inc. v. City of Hopkinsville , 415 S.W.3d 76 (Ky. 2013).
Nevertheless, we find no basis for the Department's withholding the records in their entirety based on the privacy interest of the victim. "[W]hen an individual enters on the public way, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent."
Zink v. Com., Dep't of Workers' Claims, supra , 902 S.W.2d at 828. In particular, "where an individual has been arrested, charged and indicted for a sexual offense[,] the individual's identity would clearly be subject to public disclosure."
Lexington H-L Services, Inc. v. Lexington-Fayette Urban Cty. Gov't , 297 S.W.3d 579, 584 n.6 (Ky. App. 2009). Since KRS 61.878(1)(a) does not exempt the entirety of the requested records from disclosure, the Department must provide a redacted version. 3
Federal laws invoked by the Department
The Department only vaguely invokes the Federal Educational Rights and Privacy Act ("FERPA"), the Clery Act, and the Violence Against Women Act ("VAWA"), identifying no specific sections of these federal statutes on which it relies. Such vague references fail to satisfy a public agency's burden of proof under KRS 61.880(2)(c). 07-ORD-258. Nevertheless, we undertake a brief analysis of these statutes due to their "significant policy implications." Id .
The relevant confidentiality provision of FERPA states:
20 U.S.C. § 1232g(b)(1) (emphasis added). 20 U.S.C. § 1232(g)(a)(4)(A)(ii) defines "education records" as materials that "are maintained by an educational agency or institution or by a person acting for such agency or institution." The Department does not explain how a city police department can be considered an "educational agency or institution," or its police records "education records." 4Therefore, we find FERPA inapplicable to the requested records.
The Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act ("Clery Act"), codified at 20 U.S.C. § 1092(f), concerns the publishing and distribution of campus security information by "eligible institutions" to their students, employees, and applicants for enrollment. 20 U.S.C. § 1092(f)(8)(B)(v) requires such institutions to distribute a policy statement including "[i]nformation about how the institution will protect the confidentiality of victims, including how publicly-available recordkeeping will be accomplished without the inclusion of identifying information about the victim, to the extent permissible by law." Again, the statute does not apply to the Department. 20 U.S.C. § 1101a(a)(2)(A) defines "eligible institution" as including only "an institution of higher education." Therefore, the Clery Act does not apply to the requested records.
The confidentiality provision of the Violence Against Women Act ("VAWA"), 34 U.S.C. § 12291(b)(2), requires "grantees and subgrantees under this subchapter" to "protect the confidentiality and privacy of persons receiving services," including "personally identifying information or individual information collected in connection with services requested, utilized, or denied through grantees' and subgrantees' programs."" The question, therefore, is whether the Department is a "grantee" or "subgrantee" under the relevant subchapter, 34 U.S.C. §§ 12291-12512. The Department has not established, or even alleged, that it receives any grant funding from the U.S. Department of Justice, Office on Violence against Women, or provides any "victim services" as defined in 34 U.S.C. § 12291(a)(44). Therefore, we have no basis for finding that VAWA applies to the Department's records. 5
Conclusion
The Murray Police Department procedurally violated KRS 61.880(1) by initially denying the request without citing any exception to the Open Records Act. Furthermore, the Department substantively violated the Act by its failure to justify its denial of the disputed arrest records, booking documentation, and search warrants in their entirety. The Department may, however, redact the name and any personal identifying information of the victim, and personal identifying information for witnesses and other uncharged individuals, pursuant to KRS 61.878(1)(a) and KRS 61.878(4).
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.
Footnotes
Footnotes
2 Assuming 6:32 p.m. to be after regular office hours, the Department's records custodian would have received the request on July 3, 2019. Because KRS 61.880(1) allows an agency three days to respond to a request, excluding Saturdays, Sundays, and legal holidays, the Department's response was timely.
1 https://www.wkms.org/post/murray-state-cheerleader-arraigned-rape-charg… (last visited July 31, 2019).
3 If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4).
4 Indeed, FERPA does not even apply to law enforcement records of "a law enforcement unit of [an] educational agency or institution." 20 U.S.C. § 1232g(a)(4)(B)(ii).
5 We note that KRS 61.878(1)(a) serves to protect victim confidentiality in this case; thus, confidentiality under VAWA would be essentially redundant.