September 2, 1993






IN RE: Rodney F. Delegal/Daviess County Detention Center






This matter comes to the Attorney General on appeal from the Daviess County Detention Center's denial of Mr. Rodney F. Delegal's March 23, 1993, request for a copy of the Center's visitors log for January 24, 1990, and January 25, 1990. Mr. Delegal explains that the visitors log contains the names of all visitors, including police officers, attorneys, and law enforcement personnel, as well as the date of their visit, the time they arrived and departed, and the names of the prisoners with whom they wished to visit.


On behalf of the Detention Center, Mr. Robert M. Kirtley, Daviess County Attorney, responded to Mr. Delegal's request in a letter dated May 18, 1993. Relying on KRS 61.878(1)(a) and (g), he argued:


The visitors log is controlled by jail policy . . . which allows an inmate to designate who may visit with him/her. Also, the visitors log contains names of law enforcement personnel and whom [sic] they visit. The Jailer feels that he would have to get permission from each inmate on that particular page to disclose to you the visitors log. He further feels he would have to get with each officer to determine whether or not an investigation is ongoing or otherwise.


Mr. Kirtley therefore denied Mr. Delegal's request.


We are asked to determine if the Daviess County Detention Center properly relied on KRS 61.878(1)(a) and (g) in denying Mr. Delegal's request. For the reasons set forth below, we conclude that Mr. Kirtley improperly denied the request.


We begin with the principle that jail records are public records. This principle is based on the reasoning set forth in OAG 81-395. At page one of that opinion, we observed:


It is contrary to the principles of personal liberty recognized in this nation for persons to be secretly held in jail. The fact that knowledge of their incarceration may be embarrassing to them or to members of their family is of secondary importance.


See also, OAG 79-575. Thus, this Office had held that records containing the names of persons lodged in a jail as inmates must be released. OAG 81-395. We have also held that the general business records of a jail are not exempt from disclosure. OAG 79-546. On the other hand, the Attorney General has stated that policy and procedure manuals and other intraoffice memoranda of a detention facility are exempt from the mandatory disclosure provisions of the Open Records Act since their release might jeopardize the security of the facility. OAG 79-546. We have not, however, had occasion to address the issue raised in this appeal.


Mr. Kirtley argues that the visitors log may be withheld pursuant to KRS 61.878(1)(a), the privacy exception. In Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky. 826 S.W.2d 324 (1992), the Kentucky Supreme Court enunciated a clear test for analyzing the propriety of an agency's invocation of this exception. There the court observed:


[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a

case-specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is 'clearly unwarranted' is intrinsically situational, and can only be determined within a specific context.


Board of Examiners, supra at p. 327, 328. Fundamental to this "comparative weighing of antagonistic interests" is the recognition that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Board of Examiners, supra at 328. As a result, there is no blanket or per se applicability of KRS 61.878(1)(a) to a given category of records. Our decision in each case must be made by a comparative weighing of the antagonistic interests that exist in the specific situation.


In Kentucky Board of Examiners, supra, the Supreme Court characterized these "antagonistic interests" as the public's interest in knowing whether its agencies are properly executing their statutory functions and its public servants are serving the public, and the individual's interest in the nondisclosure of records that touch upon the intimate or personal features of his life. The purpose and mission of a county jail, such as the Daviess County Detention Center, is to provide for the incarceration of prisoners arrested in the county or sentenced or held by order of the courts in the county. KRS 441.025(1). Given this mission statement, we are hard pressed to identify any public interest that would be served by release of the visitors log. The public interest in disclosure is therefore minimal at best.


The privacy interests of persons whose names appear on the log is also relatively insubstantial. As noted, this Office has previously recognized that "[t]he fact that knowledge of an inmate's incarceration may be embarrassing to them or to members of their family is of secondary importance." It is a small step to the conclusion that friends and family of an inmate who elect to visit him or her, and are required to register their names with the jail, have a minimal privacy interest in nondisclosure of their identities. Certainly, the fact of their visit does not touch upon the most intimate or personal features of their lives. Nor can we imagine why a law enforcement officer would have a privacy interest in these records. Presumably, the officer is merely

discharging the duties for which he was employed. The privacy interests of all of the individuals whose names are found in the visitors log must therefore be characterized as insubstantial.


In Board of Examiners, supra at 327, the Supreme Court recognized that the Open Records Act "exhibits a general bias favoring disclosure." Thus, when the privacy interest of the individual does not clearly outweigh the public's interest, the balance must be tipped in favor of disclosure. In the present appeal, neither the public's interest in disclosure of the visitors log nor the individual's interest in nondisclosure is manifestly superior. In view of the statute's general bias favoring disclosure, and in the absence of any direct evidence that release of the visitors log would constitute a clearly unwarranted invasion of personal privacy, we conclude that the Daviess County Detention Center erred in refusing to release the record under authority of KRS 61.878(1)(a).


Turning to Mr. Kirtley's second line of defense, we question whether the visitors log of the Daviess County Detention Center can properly be characterized as a record of a "law enforcement agenc[y] . . . compiled in the process of detecting and investigating statutory . . . violations . . . ," within the meaning of KRS 61.878(1)(g), and in light of the rule of strict construction mandated by KRS 61.871. Nevertheless, we are reluctant to find that there would not be an occasion when the Detention Center could successfully invoke KRS 61.878(1)(g) to withhold portions of the log. For example, in the event of a jail escape, the Center might invoke the exception in conducting its investigation. However, in the present appeal, Mr. Kirtley has not shown by proof that disclosure of the specific pages of the log requested by Mr. Delegal "would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication." KRS 61.878(1)(g). We therefore find that the Center improperly relied on KRS 61.878(1)(g) in denying Mr. Delegal's request. Accordingly, we direct the Daviess County Detention Center to immediately release the requested records.


The Daviess County Detention Center may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.














Distributed to:


Hon. Robert M. Kirtley

Daviess County Attorney

212 St. Ann Street

Courthouse, Room 202

Owensboro, KY 42303


Mr. Rodney F. Delegal

Reg. No. 00811-027

P. O. Box 1000

Lewisburg, PA 17837