TO BE PUBLISHED
March 2, 1993
IN RE: James L. Thomerson/University of Kentucky
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the University of Kentucky's actions relative to Lexington Herald-Leader reporter, Valerie Honeycutt's, October 22, 1992, request to inspect certain records in the University's custody. Those records are identified as "the criminal case file of Mr. Dan Hanke," a non-student research associate at the University who was arrested on November 26, 1976, and charged with Possession of a Schedule III, Non-Narcotic, for Use. The individual was arrested in a fifth floor office of the UK Medical Center.
In a letter dated October 23, 1992, Mr. Donald B. Clapp, Vice-President for Administration at the University, responded to Ms. Honeycutt's request. He advised her that the University would provide her with copies of the contents of the case file, but would redact portions of the "Details of Incident" report, pursuant to KRS 61.878(1)(a), because disclosure of some of the information in the report would constitute a clearly unwarranted invasion of Mr. Hanke's personal privacy.
On behalf of his clients, The Lexington Herald-Leader and Ms. Honeycutt, Mr. James L. Thomerson appealed to the Attorney General the University's decision to release a redacted copy of the incident report. He argues that the University's reliance on KRS 61.878(1)(a) is misplaced in view of the consistent holdings of this Office. Citing OAG 83-212, OAG 76-511, OAG 82-388, OAG 81-379, OAG 80-210, OAG 81-395, and the Kentucky Supreme Court's decision in Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., Ky., 826 S.W.2d 324 (1992), he takes the position
that an individual does not have a privacy interest in police records pertaining to him. Continuing, he observes:
The Details of Incident report describes the circumstances which led to Mr. Hanke's arrest for possession of Schedule III non-narcotic drugs. His case was 'continued generally' and he was 'referred to Comprehensive Care.' While the information contained in the Details of Incident report may be embarrassing to Mr. Hanke, this is an insufficient ground upon which to deny the public access to the public record.
Since, according to Mr. Thomerson, Mr. Hanke has no privacy interest in the incident report concerning his arrest, it is unnecessary to determine whether disclosure of the information in the report would constitute an unwarranted invasion of personal privacy.
Associate General Counsel for the University, Paul C. VanBooven, responded to Mr. Thomerson's appeal in a letter to this Office dated November 4, 1992. He explained that the University redacted portions of the police report because the information touched on the intimate and personal features of Mr. Hanke's life. Citing 92-ORD-1440, he argued that release of the information would constitute a clearly unwarranted invasion of personal privacy inasmuch as "it did not relate to the material facts of the crime being investigated." Mr. VanBooven provided this Office with copies of both the redacted and the unredacted versions of the report to facilitate our review.
In a reply letter dated November 9, 1992, Mr. Thomerson argued that Mr. Hanke's privacy interest is, at best, minimal, in view of the fact that he was arrested in a public building and that his activities were sufficiently noisy that they aroused the curiosity of the nurses on duty. It is his position that "the circumstances demonstrated a certain amount of indifference on [the individual's] part about whether he got caught." On the other hand, Mr. Thomerson maintains that the public's interest in disclosure is great. He observes:
In order to monitor police activities and determine if the police are conducting the public's business properly, the public needs to be aware of the circumstances under which people are arrested. The public must know this not only for the purpose of knowing if
charges are justified, but also to know whether charges which could be asserted are being properly pursued. For instance, what if the deleted portions of the 'Details of Incident' report show that Mr. Hanke was committing an offense other than that for which he was charged? The public needs this information in order to monitor the activities of the police and determine if the laws of the state are being fairly and properly enforced.
He therefore concludes that "the significant public interest supports disclosure of the records . . . ."
We are asked to determine if the University of Kentucky violated the Open Records Act in redacting portions of the police incident report pursuant to KRS 61.878(1)(a). To make this determination, we have examined both the redacted and the unredacted versions of the report. For the reasons set forth below, we conclude that the University's reliance on KRS 61.878(1)(a) to authorize nondisclosure of those portions of the police incident report which the University deemed extraneous to "the material facts of the crime being investigated" was improper. We therefore direct the University to release the unredacted report forthwith.
The Kentucky Supreme Court recently enunciated a clear test for analyzing the propriety of an agency's invocation of the privacy exception. In Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., supra at p. 327, 328, 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.
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.
We acknowledge that this Office has consistently ruled that information in a police record about a person who has been charged with a crime is not information of a personal nature. See, e.g., opinions cited on page 1. Fundamental to these opinions is the idea that:
What a person does in his own home or on his own piece of property, whether it be large or small, is mainly his private affair but when he enters on the public ways, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent.
OAG 76-511, at p. 4 (emphasis added). Moreover, as we noted in OAG 76-443, what a police department does is of a public nature. We continue to adhere to this view as a rule of general application. However, in light of the Court's admoni- tion in Kentucky Board of Examiners, supra, that the question of whether an invasion of privacy is clearly unwarranted must be determined within a specific context, we believe that the question of the propriety of an agency's invocation of KRS 61.878(1)(a) to authorize nondisclosure of a police incident report, or a portion thereof, must be reviewed on a case by case basis. Our decision in each such case must be made by a comparative weighing of the antagonistic interests that exist in the specific situation.
In Kentucky Board of Examiners, supra, at p. 328, 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 the University of Kentucky Police Department, like all safety and security departments of public institutions of higher education, is:
To preserve the peace, maintain order and prevent unlawful use of force or violence or
other unlawful conduct on the campuses of their respective institutions, and to protect all persons and property located thereon from injury, harm and damage.
KRS 164.955(1)(a). The University of Kentucky Police Department is empowered to enforce the criminal laws of state and local government, as well as institutional regulations.
In support of its position that the public's interest in disclosure of the unredacted record outweighs Mr. Hanke's privacy interest, the Herald-Leader asserts that the public must be afforded access to the entire record to monitor police activities and insure that the police are properly enforcing the laws of the state by pursuing all criminal charges that could be brought against an individual. While it can be argued that release of the redacted report satisfies this interest by relating the circumstances of the arrest and the facts which gave rise to the charges against Mr. Hanke, we believe that there are other factors at issue in this appeal which militate in favor of disclosure.
This appeal arises in the context of a hotly contested and widely publicized child custody dispute the events of which have been played out in this state and in Maryland. Certain of the facts deleted by the University from the incident report were discussed in custody proceedings in Maryland, and are a matter of public record. These facts were deemed relevant to a proper resolution of the issue of child custody and visitation. Mr. Hanke's privacy interest in the police incident report, which at first glance appears to be substantial in view of the highly sensitive nature of the redacted information contained therein, is accordingly reduced, the disputed information having already been publicly aired.
Moreover, we believe that the public's interest in disclosure is heightened by virtue of the fact that it is not just the University of Kentucky Police Department's performance that is implicated by the disputed record, but the performance of the Cabinet for Human Resources in advocating the best interest of the child and the courts in justly resolving the issue of custody and visitation. The redacted information has a direct bearing on these issues, and disclosure will serve the public's interest in determining whether these public agencies and the courts faithfully executed their functions.
We therefore conclude that the University of Kentucky violated the Open Records Act in redacting portions of the
police incident report pursuant to KRS 61.878(1)(a). Release of the redacted portions of the report does not constitute a clearly unwarranted invasion of Mr. Hanke's privacy since the public's interest in disclosure is superior to his privacy interest.
The Court's decision in Kentucky Board of Examiners, supra, is a double-edged sword. That opinion directs a case specific analysis which in some instances will yield a favorable outcome for the appellant such as the outcome we reach today. The mandate of that opinion is, however, clear: We cannot blindly adhere to prior Attorney General's Opinions but must weigh the competing interests on a case by case basis, however unpopular the result. We conclude that on the facts presented in this appeal, the University's action constituted a violation of the Open Records Law.
The University of Kentucky may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Hon. Donald B. Clapp
Vice President for Administration
Office of the President
104 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Hon. James L. Thomerson
Stoll, Keenon & Park
201 East Main Street
Lexington, Kentucky 40507-1380
Hon. Paul C. VanBooven
Associate General Counsel
Office of Legal Counsel
University of Kentucky
Lexington, Kentucky 40506-0032