NOT TO BE PUBLISHED
May 13, 1997
In re: Natalie Talmage Stuart/Edmonton Police Department
Open Records Decision
The question presented in this open records appeal is whether the Edmonton Police Department properly responded to Natalie Talmage Stuart's March 26, 1997, request for copies of "statements, records, investigative reports, and photographs" of an incident involving her client Ryan Cote. Mr. Cote is a minor who sustained injuries while in a doctor's office. His case is under investigation and has been set for trial. On March 28, city attorney Barry D. Gilley responded to Ms. Stuart, advising her that the police department would honor her request upon receipt of a signed release from Mr. Cote's parents and a court order. This appeal followed.
It is the opinion of this office that the Edmonton Police Department erred in refusing to disclose records relating to the incident involving Mr. Cote. The department's response was procedurally deficient, and, under the reasoning set forth in 96-ORD-115, substantively incorrect.
KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request 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. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In Edmondson v Alig, Ky. App., 926 S.W.2d 856, 858 (1996), the Kentucky Court of Appeals observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
A "limited and perfunctory response" to an open records request does not "even remotely compl[y] with the requirements of the Act -- much less . . . amount[ ] to substantial compliance." Id. To the extent that the police department's response did not include a statement of the exception authorizing withholding of the records or explain how it applies to the records withheld, it was deficient. We note that in her original records request, Ms. Stuart did not refer to the Open Records Act. It therefore was not facially apparent that her request was made under the Act. Upon receipt of her appeal, however, this office notified the Edmonton Police Department and offered the department the opportunity to respond pursuant to KRS 61.880(1). The department elected to stand on its earlier response, agreeing to adhere to the Attorney General's decision in this matter. For purposes of future open records requests, the department should refer to KRS 61.880(1) to insure that its responses conform to the Open Records Act.
Turning to the issue of nonrelease of investigative records pertaining to a juvenile crime victim, we direct the parties' attention to 96-ORD-115, a copy of which is enclosed. In that decision, the Attorney General recognized that although there is a public policy which militates in favor of protecting the privacy of juvenile victims of crime, we cannot approve a policy of blanket nondisclosure regarding records relating to juvenile victims. Applying KRS 61.878(1)(a) and the privacy analysis articulated by the Kentucky Supreme Court in Kentucky Board of Examiners of Psychologists v The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992), we concluded that "the weight to be assigned the privacy interest corresponds to the nature and circumstances of the crime perpetrated against the juvenile, and that the public interest in monitoring agency action in investigating that crime may, in some instances, outweigh an otherwise de minimus privacy interest." Id.
In 96-ORD-115, we concluded that the juvenile victim's privacy interest was superior to the public interest in disclosure. There the juvenile was the victim of a drive-by shooting. In reaching this conclusion, "we consider[ed] a number of relevant factors, including the seriousness of the crime, the circumstances under which it was committed, and the adverse impact on the juvenile victim of further disclosure." 96-ORD-115, p. 5. While we do not mean to understate the seriousness of the incident involving Mr. Cote, we do not believe that it is comparable to incidents involving sodomy, sexual abuse, or as in 96-ORD-115, a drive-by shooting. Conversely, we have long recognized that "if a citizen wants the services of . . . [a law enforcement agency] to investigate a crime, he cannot expect that the matter will be kept secret." OAG 80-744, p. 1, cited in 96-ORD-115, p. 3. Based on the facts presented to this office by Mr. Gilley, we find that the public's interest in disclosure of the records generated by the Edmonton Police Department in its investigation of the incident involving Mr. Cote and his doctor is superior to Mr. Cote's privacy interest in those records.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
A. B. Chandler III
Amye L. Bensenhaver
Assistant Attorney General
Natalie Talmage Stuart
Stuart & Broz
607 East Tenth Street
Bowling Green KY 42101
Barry D. Gilley
Edmonton City Attorney
108 South Main Street
Edmonton KY 42129