TO BE PUBLISHED
April 13, 1993
IN RE: Dave Baker/Kentucky State Police
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Kentucky State Police relative to State Journal staff writer, Dave Baker's, February 16, 1993, request to inspect and copy, "All investigative files on Frankfort resident Michael Hugh Morris, 1154 Shadrick Ferry Road, date of birth, March 30, 1951. The cases against Mr. Morris are now closed." Mr. Morris is a Frankfort resident and a candidate for Franklin County Sheriff. In 1991, he was charged with sodomy, sexual abuse, and unlawful transaction with a minor. He was subsequently acquitted.
On February 17, 1993, Ms. Diane Smith, Official Custodian of Records for the Kentucky State Police, denied Mr. Baker's request. Ms. Smith relied on KRS 61.878(1)(j), now codified as KRS 61.878(1)(k), and KRS 610.320(3). She explained that KRS 61.878(1)(k) exempts from public inspection records made confidential by enactment of the General Assembly. That statute incorporates KRS 610.320(3) which exempts "[a]ll law enforcement records regarding children who have not reached their eighteenth birthday . . . ." It was Ms. Smith's position that these provisions work in tandem to prohibit disclosure of the requested records.
In a followup letter to this Office, Ms. Smith explained that the report which Mr. Baker requested resulted from a child sexual abuse investigation conducted pursuant to KRS 620.030. She indicated that it is the policy of the Kentucky State Police to deny requests for such records under KRS 61.878(1)(a), KRS 620.050(4), and KRS 610.320(3). Continuing, Ms. Smith observed:
It would appear without question that the purpose of the Kentucky Unified Juvenile Code is to prevent the victimization of children (KRS 600.010). To allow release of the sought after report containing accounts of the sexual violations of a child is tantamount to a second attack on the child and clearly an unwarranted invasion of the child's privacy under any balancing test. The drafters of the code emphasized this position by additional release prohibitions at KRS 61.878(1)(k) and KRS 610.320 and 620.050(4).
Ms. Smith provided this Office with a copy of the State Police report to facilitate our review.
In his letter of appeal to this office, Mr. Baker notes that KRS 610.320(3), prohibiting release of law enforcement records regarding children who are not yet eighteen, is inapplicable to the requested records. Mr. Morris is not a juvenile, and does not enjoy the protection of this provision. Mr. Baker notes that the juveniles' names appear in the court record. He suggests that "[f]ar better remedies are available to protect the names of the two girls other than withholding an entire file of an adult accused of crimes against children." He expresses the belief that there is an overwhelming public interest in disclosure which overrides the privacy issues implicated in this appeal. "Mr. Morris is now a candidate for sheriff, the county's highest law-enforcement officer. Facts of criminal charges against a sheriff's candidate should be explored before the May primary."
Mr. Baker acknowledges that there is an unpublished Franklin Circuit Court case disposing of a similar issue. In The Lexington Herald-Leader Company v. Kentucky State Police, No. 91-CI-01490 (Franklin Circuit Court, Division II, August 25, 1992), the circuit court ruled that the Kentucky State Police properly withheld eighteen files pertaining to child sexual abuse charges filed against four named individuals
pursuant to KRS 61.878(1)(a), the privacy exception. Finding no compelling reasons for release of the information, the court concluded that the victims' privacy interest outweighed the public's interest in "ferreting out lax enforcement of child sexual abuse laws . . . ." Lexington Herald-Leader, supra at 8. The court did not address the applicability of KRS 61.878(1)(k), KRS 610.320, and KRS 620.050(4) to the requested records, other than to note in passing that "even if the statutes themselves do not protect the information in the records, their very existence serves as evidence of the exceedingly private nature of the information." Id.
We are asked to determine if the Kentucky State Police properly denied Mr. Baker's request for records generated in the course of its investigation into allegations of sodomy, sexual abuse, and unlawful transaction with a minor brought against an adult, Mr. Mike Morris, who is currently a candidate for Franklin County Sheriff. For the reasons set forth below, we conclude that the disputed records are not exempt from public inspection, to the extent that they relate to the criminal charges brought against Mr. Morris. Those portions of the records which disclose the identities of the juveniles or contain personally identifiable information, may be redacted pursuant to KRS 61.878(1)(a), insofar as disclosure would constitute a clearly unwarranted invasion of privacy. The Kentucky State Police is therefore directed to promptly arrange for Mr. Baker to inspect the nonexempt portions of its investigative files.
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., Ky., 826 S.W.2d 324, 327, 328 (1992), 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." Kentucky 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.
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., OAG 76-511; OAG 80-210; OAG 81-379; OAG 81-395; OAG 82-388; OAG 83-212. Fundamental to these opinions is the idea that "when [a person] 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. 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 admonition 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 investigative 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 Kentucky State Police, as set forth in KRS 16.060, is:
[T]o detect and prevent crime, apprehend criminals, maintain law and order throughout the state, to collect, classify and maintain information useful for the detection of crime and the identification, apprehension and conviction of criminals and to enforce
the criminal, as well as the motor vehicle and traffic laws of the Commonwealth.
Disclosure of the records will therefore satisfy the public's interest in knowing that the State Police are aggressively investigating and enforcing the laws relative to sodomy, sexual abuse, and unlawful transactions with minors.
However, it is not only the public's interest in knowing whether the State Police are executing their statutory function that is implicated by this open records appeal. It is also the public's interest in assessing the qualifications and character of a candidate for public office, here, the office of Franklin County Sheriff. A county sheriff is a peace officer charged with enforcing the laws of the Commonwealth, including those laws which Mr. Morris was charged with violating. See generally, KRS Chapter 70; KRS 446.010(24); Ky. Const. 99. His criminal history has a direct bearing on his fitness to serve. The public therefore has a substantial interest in knowing the nature of the charges against him, and how those charges were ultimately resolved. Having offered himself up as a candidate for public office, rather than remaining anonymous in the mass of humanity, he exposes his past to public scrutiny and forfeits certain privacy rights. The fact of his arrest and indictment for charges relating to sodomy, sexual abuse, and unlawful transaction with a minor, as well as the fact of his acquittal, are not protected from disclosure by KRS 61.878(1)(a).
The countervailing privacy interests are, instead, those of the juveniles named in the records. There can be little doubt that the allegations of sodomy, sexual abuse, and unlawful transaction with a minor made against Mr. Morris by the juveniles "touch [ ] upon the most intimate and personal features of private lives." Kentucky Board of Examiners, supra at 328. KRS 620.050(4), relating to the confidentiality of information obtained by the Cabinet for Human Resources or its delegated representative in the course of investigating reports of dependency, abuse, or neglect, demonstrates a legislative commitment to protecting the privacy of children who have fallen victim to sexual abuse. It does not, however, demonstrate a commitment to protecting the identity of the alleged perpetrator of the abuse.
KRS 61.878(4) expressly provides:
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.
In our view, the privacy interests of the juveniles whose names appear in the disputed records can be protected by redaction of the juveniles' names and personally identifiable information from the records. The public interest in disclosure of the relevant criminal history of a candidate for elective office, as well as its interest in insuring that the State Police properly executed its statutory duties relative to this investigation, can at the same time be served by release of the remainder of the record. While we concur with Ms. Smith in her view that the juveniles' privacy interest is superior to the public's interest in ascertaining their identities, we do not believe that the privacy exception warrants wholesale nondisclosure of the State Police investigative file.
A number of other factors militate in favor of disclosure. Chief among these is the fact that much of the information contained in the State Police report was publicly aired at Mr. Morris' criminal trial. Since the case file is available for inspection in the Franklin Circuit Court Clerk's Office, the privacy interests implicated by the appeal are accordingly reduced. 93-ORD-21.
Moreover, as we have noted, the individual against whom the charges were leveled is a candidate for public office. This fact, standing alone, distinguishes this appeal from the Franklin Circuit Court's decision in The Lexington Herald-Leader v. Kentucky State Police, supra. In that decision, the court found no overriding public interest in disclosure of the State Police records. Here, the public's interest in disclosure is far more substantial, and is, in our view, superior to Mr. Morris' privacy interest. As noted, the privacy interests of the juveniles outweighs the public's interest in ascertaining their identities, and their names may be redacted from the records pursuant to KRS 61.878(1)(a).
The facts presented in this appeal also distinguish it from our opinion in OAG 91-173. There we held that the Kentucky State Police properly withheld information obtained by it in the course of its joint investigation with the Cabinet for Human Resources into allegations of child sexual abuse involving four adults pursuant to KRS 61.878(1)(k) and KRS 620.050(4). At page 11 of that opinion, we held:
This Office emphasizes that the opinion in this appeal is not intended and shall not be construed to justify nondisclosure of all Kentucky State Police records involving juveniles by reliance upon KRS 61.878(1)[(k)] and KRS 620.050(4). Rather, it is the opinion of this Office that under the specific facts presented in this appeal, the Kentucky State Police and the Cabinet for Human Resources conducted a joint investigation and obtained its information jointly and therefore KRS 620.050(4) is applicable.
It was this Attorney General's opinion which was challenged in Franklin Circuit Court, culminating in the cited circuit court decision. The Kentucky State Police do not assert that this investigation was conducted jointly with the Cabinet. We are therefore not bound by the reasoning of that opinion.
Turning to the issue of the propriety of Ms. Smith's reliance on KRS 61.878(1)(k) and KRS 610.320 and KRS 620.050(4) to authorize nonrelease of the requested records, we begin by noting that there are no published opinions in Kentucky which are directly on point. Judge Graham's ruling in Lexington Herald Leader, supra, an unpublished circuit court decision, does not resolve this question. This Office's decision in OAG 91-173, that the State Police properly withheld investigative files involving allegations of child sexual abuse, turned on the fact that the records were compiled in a joint investigation conducted by the Cabinet for Human Resources and the State Police pursuant to KRS 620.050(4). Although the State Police rely on KRS 620.050(4) in the present appeal, they do not assert, nor is there evidence to suggest, that the allegations against Mr. Morris were investigated jointly by the Cabinet and the State Police.
KRS 620.050(4) provides:
(4) All information obtained by the cabinet or its delegated representative, as a result of an investigation made pursuant to this chapter, shall not be divulged to anyone except:
(a) Persons suspected of causing dependency, neglect or abuse, provided that
in such cases names of informants shall be withheld unless ordered by the court;
(b) The custodial parent or legal guardian of the child alleged to be dependent, neglected or abused;
(c) Persons within the cabinet with a legitimate interest or responsibility related to the case;
(d) Other medical, psychological, educational, or social service agencies, corrections personnel or law enforcement agencies, including the county attorney's office, that have a legitimate interest in the case;
(e) A noncustodial parent when the dependency, neglect or abuse is substantiated; or
(f) Those persons so authorized by court order.
It is the opinion of this Office that unless the Kentucky State Police is acting as the Cabinet's designated representative in conducting a joint investigation into allegations of dependency, neglect, or abuse, as opposed to independently conducting an investigation into possible criminal charges against an adult, KRS 620.050(4) does not operate to authorize nondisclosure of the records it compiles. In our view, this provision was not intended to protect the identities of adults charged with violations of the criminal laws.
Nor do we believe that KRS 610.320(3) prohibits disclosure of the State Police records at issue in this appeal. That statute provides:
(3) All law enforcement records regarding children who have not reached their eighteenth birthday shall not be opened to scrutiny by the public. However, such law enforcement records shall be made available to the child, family, guardian or legal
representative of the child involved. Such records shall also be made available to the court, probation officers, or representa-
tives of the cabinet.
This provision is found in Chapter 610 of the Kentucky Revised Statutes relating to "Procedural Matters" in Juvenile Court. Juvenile court cases include those where a child under eighteen years of age:
1) has committed a public offense other than a traffic violation;
2) has not subjected himself to the reasonable control of his parent or guardian;
3) is a habitual truant;
4) is a habitual runaway;
5) is dependent, neglected, or abused; or
6) is mentally ill.
Chapter 610 does not govern criminal proceedings against adults charged with offenses involving children. As the Kentucky Supreme Court noted in F.T.P. v. Courier-Journal and Louisville Times Co., Ky., 774 S.W.2d 444, 446 (1989):
The purpose of the shroud of secrecy and confidentiality mandated by . . . [these] statutes is to protect the juvenile. It was intended that trials of juveniles not be publicized in the news media, as such publicity would possibly deprive the juvenile of a fair trial and, more importantly, would likely diminish his or her prospect for rehabilitation.
In our view, the "shroud of secrecy" aimed at protecting juveniles cannot logically be extended to protect adults accused of victimizing juveniles.
We believe that the purpose underlying these provisions relative to juvenile court records also underlies KRS 610.320(3) relative to juvenile law enforcement records. KRS 610.320(3) was enacted in response to a legislative concern that juveniles would not receive a fair trial and that their
chances for rehabilitation might be diminished as a result of release of law enforcement records relating to them. The legislature did not intend to make confidential law enforcement records regarding adults who are charged with crimes involving children who have not reached their eighteenth birthday. Certainly, the court records of proceedings involving adults accused of such crimes are not made confidential. Lexington Herald Leader v. Tackett, Ky., 601 S.W.2d 905 (1980).
In summary, we conclude that the Kentucky State Police improperly relied on KRS 61.878(1)(a) and (k), and KRS 610.320(3) and 620.050(4), in denying Mr. Baker's request to inspect the files generated in the course of its investigation into Michael Morris. Although the privacy interests of the juveniles whose names appear in those records are superior to the public's interest in disclosure of their identities, that interest can be protected by redaction of the juveniles' names and personally identifiable information. Mr. Morris's privacy interests, however, are outweighed by the public's interest in assessing his fitness to serve as Franklin County Sheriff, for which he is a candidate, and the public's interest in evaluating the performance of the Kentucky State Police in investigating the case.
We further conclude that the Kentucky State Police's reliance on KRS 61.878(1)(k) and KRS 610.320(3) and 620.050(4) is misplaced. In our view, these statutes are aimed at protecting juveniles, and not adults who are criminally prosecuted.
The Kentucky State Police 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
Ms. Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601
Mr. Dave Baker
The State Journal
321 West Main Street
Frankfort, KY 40601