Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the University of Kentucky ("University") violated the Open Records Act in its disposition of a request for a copy of a University police incident report regarding an alleged rape. For the reasons that follow, we find that the University sustained its burden of proof in redacting the majority of the narrative of the incident report and other details in the report relevant to KRS 61.878(1)(a), but procedurally violated the Act in its initial response by failing to respond within three business days, failing to explain the reason for delay, and not citing the exception it relied upon in redacting details of the incident report.
By letter of June 21, 2019, Kenny Jacoby requested "a copy of the UKPD police report/incident report/case file for an alleged rape that occurred on or about March 3, 2014, involving then-UK student Tanner Blain [as] a suspect." The University's records custodian responded to the open records request on June 27, by providing a redacted copy of a single "Call Response Run Report" ("incident report") which consisted of three pages. The response stated that state and federal privacy rights prohibited the University from releasing details of the sexual assault.
Upon receiving the University's response, Appellant asked that the University cite the specific statutory exemptions it had relied upon to partially deny his request. The University replied that same day, July 1, citing KRS 61.878(1)(a) as its statutory basis for withholding the details of the sexual assault. The University also confirmed that the record provided was the only record responsive to Appellant's request.
Appellant appealed the University's response, stating that "the heavy redactions . . . severely restrict the public's ability to analyze and scrutinize the adequacy and sufficiency of UKPD's response to a report of sexual assault. The vast majority of the narrative portion of the report, as well as information about the location of the incident, are redacted. " Appellant cited our decision at 02 - ORD-36, for the proposition that a public agency may only redact "the names and addresses of the victims of sexual offenses, the location of the offenses if the offenses occurred in the victim's homes, and the complainants' signatures if the complainant and victim are one and the same."
On August 27, 2019, this office requested the withheld record for an in camera review pursuant to its authority under KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, and the University promptly provided a copy of the unredacted record for review. 1 2 Although we are constrained from providing the redacted details of the incident report, the redacted information contains the names of the alleged victim and witness; the date, time and location of the alleged assault; the details of the alleged assault; and the circumstances of the victim's departure from the location of the alleged assault.
Analysis of Arguments Regarding Redactions . Appellant cites our decision at 02-ORD-36 in support of his claim that the University violated the Act by not limiting its redactions of the incident report to the victim's name and address, and the location of the offense. In 02-ORD-36, we stated, in relevant part:
We conclude that, in general, that [the privacy interest of victims of sexual assault] outweighs the public's interest in scrutinizing the Division's response, an interest that is otherwise served by disclosure of the redacted incident reports. Thus, we find that the Division of Police may redact the names and addresses of the victims of sexual offenses, the location of the offenses if the offenses occurred in the [victims'] homes, and the complainants' signatures if the complainant and victim are one and the same. No other redactions are permissible . . . . The position we take today is limited to the names and information identifying victims of sexual offense that appear in incident results.
02-ORD-36, p. 11 (Emphasis added). Appellant further complains that the "University's redactions to the incident report at issue in this appeal, however, make it impossible for the public to assess whether the UKPD appropriately and adequately investigated this alleged sexual assault. "
On appeal, the University asserts that the "Complaining Witness has a 'fundamental right of privacy in preventing government officials from gratuitously and unnecessarily releasing the intimate details' of a sexual assault 'where no penalogical purpose is being served.'"
Bloch v. Ribar, 156 F.3d 673, 686 (6th Cir. 1998).
We disagree with Appellant that 02-ORD-36 is dispositive regarding the release of the redacted portion of the UKPD incident report. The facts of the case in 02-ORD-36 concerned incident reports of the Louisville Division of Police and the issue in that appeal concerned the redaction of the names and identifying information of the victims of sexual offenses, and the locations at which the offenses occurred. That decision did not decide whether a public agency must disclose the "intimate details of a victim's sexual assault" as contained in the incident report at issue.
We find that 03-ORD-153 is the more relevant decision regarding withholding detailed information in a sexual assault context. In that decision, we affirmed the Crime Victim Compensation Board's refusal to disclose the entirety of several records that were replete with details of an alleged sexual assault. 3 We rely on the analysis in 03-ORD-153, including analysis of the relevant statute and caselaw, in reaching our decision in this appeal.
Despite its "manifest intention to enact a disclosure statute," 4 the General Assembly has mandated that certain records are not open for public inspection, including those "containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. " KRS 61.878(1)(a) . 5 The public's "right to know" under the Act is premised upon the right of the public to expect its agencies to properly execute their statutory functions.
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 328 (Ky. 1992). In
Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994), the Kentucky Court of Appeals observed that determining whether disclosure is warranted under KRS 61.878(1)(a) "entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [ Kentucky Bd. of Examiners ] at 327. . . . [T]he circumstances of a given case will affect the balance. Id. at 328." Zink , at 828. The relevant "analysis does not turn on the purposes for which the request for information is made or the identity of the person making the request." Id. at 828. Rather, the only relevant public interest considered "is the extent to which disclosure would serve the princip[al] purpose of the Open Records Act. . . . [T]he purpose of disclosure focuses on the citizens' right to be informed as to what their government is doing." Id. at 829. 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." Id. at 829; 12-ORD-227.
In 03-ORD-153, the Crime Victims Compensation Board denied disclosure of records of a sexual assault because such disclosure would constitute an unwarranted invasion of privacy that outweighed the public's right to know. That decision cited to Bloch v. Ribar , in which the Sixth circuit emphasized that "the fact that the crime of rape occurred in this case implicates both a private and a public interest" and that a rape victim "has a fundamental right of privacy in preventing government officials from gratuitously and unnecessarily releasing the intimate details of the rape . . . ." Bloch at 685-86. The question presented in this appeal is whether the public's interest (in monitoring how the University discharged its duty regarding the incident report) outweighs the victim's (and witness') privacy interest in avoiding the disclosure of the details of a traumatic incident. In this instance, having reviewed the withheld record in camera , we conclude that disclosure of the incident report "would do little to further the citizens' right to know what [the University] is doing and would not in any real way subject agency action to public scrutiny." Zink , at 829; accord
Hines v. Comm., Dept. of Treasury, 41 S.W.3d 872, 875, 876 (Ky. App. 2001). 6 Under the facts of this appeal, and after our in camera review of the unredacted incident report, we find no violation of the Act in the University's redactions of the incident report as release of those details would constitute a clearly unwarranted invasion of personal privacy.
University's Initial Responses Violated Procedural Requirements . The agency's initial response satisfied neither KRS 61.880(1) nor KRS 61.872(5). See 14-ORD-226. A public agency must comply with procedural requirements of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow in responding to requests made under the Open Records Act.
In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." (Emphasis added.) Public agencies cannot generally postpone this deadline. 04-ORD-144, p. 6. The University received the request for records on Friday, June 21 and sent its response on Thursday, June 27. This response was one (1) day beyond the three-day period allowed for public agencies to respond pursuant to KRS 61.880(1).
When a public agency cannot comply with the three-day requirement, it must specify a reason for the delay in producing the requested records. 7 The University failed to provide Appellant with access to all existing responsive documents within the statutory timeframe or, in the alternative, to expressly invoke KRS 61.872(5), the statutorily recognized exception to KRS 61.880(1), and provide a detailed explanation of the cause for delay in producing any existing responsive documents and the specific date when the documents would be available. See 12-ORD-151; 13-ORD-035.
The University's initial response also violated KRS 61.880(1) by failing to cite the specific exemption authorizing the withholding of the requested records. 8 The University did not state the specific exception required by KRS 61.880(1) with its initial response, but, upon Appellant's later inquiry, it did cite KRS 61.878(1)(a) in its reply of June 27. The University thus corrected its initial error in not citing the specific exception upon which it relied to withhold portions of the incident report.
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.
Footnotes
Footnotes
1 KRS 61.880(2)(c) states in relevant part:
The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
2 40 KAR 1:030, Section 3, states:
KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered.
3 The records withheld included the "Supplementary Report to the Uniform Offense Report, the Report of the Forensic Laboratory Examination, and certain personal information related to the victim of the alleged offense . . ., the person who reported the alleged offense, the perpetrator of the alleged offense, and the claimant who was granted compensation for medical costs incurred by the victim as an apparent consequence of the alleged offense."
4 Beckham v. Board of Educ. of Jefferson Cty., 873 S.W.2d 575, 577 (Ky. 1994).
5 In Kentucky Board of Examiners of Psychologists, 826 S.W.2d at 327-328, the Court formulated a test whereby "the public's right to expect its agencies properly to execute their functions" is measured against the "countervailing public interest in personal privacy" when the records sought contain information that touches upon the "most intimate and personal features of private lives." A determination relative to KRS 61.878(1)(a) necessarily turns on whether the offense to personal privacy that would result from disclosure outweighs the benefit to the public, and is an "intrinsically situational" determination that can only be made within a "specific context." Id.
6 Hines v. Comm., Dept. of Treasury, 41 S.W.3d 872, 875 (Ky. App. 2001), (recognizing that records reflecting unclaimed property "owners' possible incomes" were of an "intimate nature").
7 KRS 61.872(5) states:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
8 In relevant part, KRS 61.880(1) requires:
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.