Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington Police Department ("LPD") violated the Open Records Act ("Act") in its disposition of an open records request from Attorney David Noble, Morgan and Morgan, ("Appellant"). As set forth below, we find that LPD did not violate the Act when it withheld the name and the personal identifying information of a suspect and victim in Case Reports and Incident Reports on the basis of KRS 61.878(1)(a).
On May 8, 2019, Appellant submitted an open records request to LPD regarding an April 18, 2019 bicycle and pedestrian related accident. Appellant requested copies of "the accident report, 911 tapes, Dispatch Records, DOT records/reports, and any photographs associated with the?collision [.]" LPD responded on the same day stating, "our office is providing you with the dispatch log and case report summary associated with this incident." However, LPD informed Appellant that it would redact the responsive records stating, "no suspect was charged. Therefore all information relating to the suspect, including the suspect's name, must be redacted from the report, as the suspect still maintains an expectation of privacy pursuant to KRS 61.878(1)(a)."
On August 22, 2019, Appellant appealed "the refusal of [LPD] to provide an unredacted copy of its Case Report and Incident Report." Appellant stated he was specifically appealing the redaction of "the names of the individuals in the vehicle who caused the catastrophic injury." Appellant attached copies of the redacted Case Report and Incident Report to his appeal, and argued that LPD's reliance on KRS 61.878(1)(a) was misplaced because "disclosure of their names and identifying information is not an unwarranted invasion of personal privacy. "
On August 28, 2019, LPD responded to the appeal, arguing that the redaction of the names and personal identifying information of individuals was permissible under KRS 61.878(1)(a). Citing
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013), LPD argued that, "public disclosure of information about witnesses, victims and uncharged suspects in police reports is an unwarranted invasion of personal privacy. " LPD asserted that, "[r]elease of this private information does nothing to help the public monitor the action of the Police in light of the records provided."
On August 29, 2019, this office requested unredacted copies of the responsive records for purpose of in camera review KRS 61.880(2)(c) 1 and 40 KAR 1:030 2, Section 3. The purpose of the in camera review was to identify the specific information redacted from the responsive records, and substantiate LPD's reliance on KRS 61.878(1)(a) as grounds for the redactions. On September 5, 2019, LPD provided this office copies of the unredacted responsive records. This office is not at liberty to disclose copies of responsive records provided by a public agency for our in camera review. However, we clarify that the responsive records only identify two individuals: one as the "primary suspect;" and one as the "primary victim." LPD redacted of the names, personal cell phone numbers, social security numbers, driver's license numbers, dates of birth, races and genders of the suspect and victim from the Case Report. LPD redacted the personal cell phone number of the suspect from the Incident Report.
LPD did not violate the Act with its "categorical redaction" of identifying information from the Case Report and Incident Report. KRS 61.878(1)(a) excludes from the application of the 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 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." Id. at 327-28. As such, "[t]he determination of whether a public agency has properly relied upon KRS 61.878(1)(a) turns on whether the offense to personal privacy that would result from disclosure of the information outweighs the public benefit, and is an 'intrinsically situational' determination that can only be made in a 'specific context.'" 17-ORD-154, p. 3 ( quoting Kentucky Bd. of Examiners of Psychologists, 826 S.W.2d at 328).
The Court of Appeals refined the standard of
Kentucky Board of Examiners of Psychologists in Zink v. Commonwealth of Kentucky, 902 S.W.2d 825, 828 (Ky. App. 1994). There, the Court reasoned that if the information requested is of a "personal nature," the next question is "whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy [, ]'" a determination which "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." Zink, 902 S.W.2d at 828 (citation omitted). The Court found that the privacy interest of injured workers in their home addresses, telephone numbers, and social security numbers outweighed the interest of an attorney seeking the information for marketing purposes. Id. at 929. The result hinged on the finding that 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. " Id.
In this case, the names and personal identifying information of the suspect and victim in the public collision are also of a "personal nature." The privacy interest of these two individuals in that information outweighs the interest of an attorney seeking the information for the purpose of litigation. As in Zink , release of the personal information would do little to further the public's right to monitor the actions of LPD. Disclosure of the personal identifying information at issue in this case would not serve the principal purpose of the Act.
Further, LPD did not violate the Act because the personal identifying information redacted from the responsive records was categorical in nature. In Kentucky New Era, Inc. v. City of Hopkinsville , the Supreme Court of Kentucky affirmed the categorical redaction of personal information of private individuals contained in law enforcement records. 415 S.W.3d 76 (Ky. 2013). The Court found that "[p]rivate citizens ? have a compelling interest in the privacy of law enforcement records pertaining to them." Id. at 83. "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. There, the newspaper sought 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.
Agreeing that the Act prohibits " blanket denials of ORA requests," the Court determined that the City of Hopkinsville's redaction policy was more accurately "referred to as a 'categorical' one." Id. at 88. The Court observed that the City had "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. The Court found that the privacy interest of the individual with regard to information like that requested here " will almost always be substantial, and the public's interest in disclosure rarely so ." Id. (Emphasis added.)
This office has affirmed the "categorical redaction" of personal identifying information from police reports pursuant to Kentucky New Era, Inc. when there was no basis on which to distinguish it. See 15-ORD-093; 16-ORD-188; 17-ORD-154. The personal identifying information of the suspect and victim that LPD redacted mirrors the redactions made in Kentucky New Era, Inc. We find that the redacted identifying information has no manifest bearing on how LPD performed its public duties. Therefore, the personal identifying information was subject to categorical redaction under KRS 61.878(1)(a). Accordingly, LPD did not violate 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.
Footnotes
Footnotes
1 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. 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: "Additional Documentation. 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."