95-ORD-111

NOT TO BE PUBLISHED

95-ORD-111

July 26, 1995

In re: Amy Wolfford/Elizabethtown Police Department

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Elizabethtown Police Department's ("Department") denial of Ms. Amy Wolfford's request, on behalf of The News-Enterprise, to inspect the Department's investigative file relating to a case in which Sonny Kerrick was charged with fourth-degree assault and to which he pleaded guilty to disorderly conduct.

Ruben L. Gardner, Chief, Elizabethtown Police Department, responding on behalf of the Department, denied Ms. Wolfford's request on the following grounds:

Please be advised that according to a 1994 opinion of the Attorney General of Kentucky the right of access is not absolute and as a precondition to inspection the requesting party (you) must identify the records with sufficient clarity to enable the agency to locate and make them available. Your letter referenced above did not mention any specific documents.

The investigator's file which contains investigative reports are excluded specifically by KRS 61.870(1)(j). This statute states that preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended are exempt and excluded from inspection, except when an order of a court compels something different. All of the contents of the investigative file are preliminary memoranda and preliminary recommendations.

It is also our position that KRS 61.878(1)(a) requires a court order before the inspection can be made because the public records in the case that you mentioned contains information of a personal nature where the public disclosure thereof would constitute a clearly unwanted invasion of personal privacy, i.e. either or both Sonny Kerrick or Patricia Kay Kerrick.

Subsequent to receipt of Ms. Wolfford's letter of appeal and Chief Gardner's response to that letter, in which each presented arguments for and against the bases for denial set out above, we requested, under authority of KRS 61.880(2), a copy of the investigative file in question to facilitate our review of the issues raised in this appeal.

For the reasons which follow, it is the decision of this office that the Department improperly withheld disclosure of the investigative file in question.

This office has previously recognized that all records of a police department are subject to public inspection unless they are specifically exempted by statute. OAG 91-131.

KRS 61.878(1)(h) provides an exemption for:

Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information 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. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action . . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884[.]

Under this exemption, a police department may withhold various documents until the prosecution of a case is concluded or a decision not to prosecute is made. Once the prosecution is concluded or a decision is made not to prosecute, the police department would have to make those documents available for inspection unless some other exception to public inspection is applicable. See 94-ORD-131.

The facts and documentation supplied this office indicate that the individual involved in the enforcement action pleaded guilty and the case is closed. Thus, the investigative file would not be exempt under KRS 61.878(1)(h).

Another applicable exception would be KRS 61.878(1)(l) which provides an exemption for:

Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.

KRS 17.150(2) provides for the nondisclosure of intelligence and investigative reports maintained by criminal justice agencies (which would include the city police department) prior to the completion of the prosecution or the decision not to prosecute. It also provides that the records may be withheld under certain circumstances. Those circumstances are set out in KRS 17.150(2)(a) - (d), which provide:

Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made. However, portions of the records may be withheld from inspection if the inspection would disclose:

(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;

(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;

(d) Information contained in the records to be used in a prospective law enforcement action.

KRS 17.150(3) places the burden upon the custodian of the records to justify the refusal of inspection with specificity.

Our review of the documentation and the Department's response leads us to the conclusion that the Department has not sustained its burden of showing that disclosure of the records would result in any of the circumstances set out in KRS 17.150(2)(a) - (d).

The Department's first basis for denial is that Ms. Wolfford's request did not identify the records with sufficient clarity to enable it to locate and make them available and the request did not mention specific documents. In her request, Ms. Wolfford identified the name of the individual charged; the date and nature of the offense with which he was charged; the name of the victim; and the date and the reduced charge to which he pleaded guilty. Although she did not request specific documents, she specified the type of documents she sought.

All this taken together, we believe the request was sufficient to enable the Department to identify the investigative file which was the subject of Ms. Wolfford's request.

The Department's second basis for denial was that the contents of the investigative file are preliminary memoranda and preliminary recommendations and, thus, exempt under KRS 61.878(1)(j).

A review of the contents of the investigative file submitted by the Department pursuant to our request does not reveal any documents which could be characterized as either preliminary recommendations or preliminary memoranda in which opinions are expressed or policies formulated or recommended. Thus, it is the conclusion of this office that the Department improperly denied disclosure of the records based upon KRS 61.878(1)(j).

The Department's third basis for denial was that the investigative file requested "contains information of a personal nature where the public disclosure would constitute a clearly unwanted invasion of personal privacy" of either the person charged with the assault or the victim and would be exempted under KRS 61.878(1)(a).

This office has consistently held that a person does not have a privacy interest in local police records pertaining to him. OAG 91-131.

In OAG 76-511, we observed:

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.

Moreover, our in camera review of the investigative file supplied by the Department indicates that the file does not contain, in our opinion, information which if disclosed would constitute a clearly unwarranted invasion of personal privacy of the victim. In general terms, the file contains primarily the recitation of the facts surrounding the assault charge.

KRS 61.878(1)(a) exempts from disclosure:

Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.

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 analyzed this exception at length. Acknowledging that the Open Records Law "exhibits a general bias favoring disclosure," Id. at 327, the court formulated a balancing test to be used in assessing the propriety of an agency's invocation of the privacy exception. The Court reasoned:

[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.

Kentucky Board of Examiners, supra at 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." Kentucky Board of Examiners, supra at 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 or her life.

In that case, supra at 328, the court held that materials containing "details of . . . marital and familial relationships and psychological symptoms" are of a very personal nature ". . . touch[ing] upon the most intimate and personal features of private lives." This suggests the type of information which may be withheld pursuant to KRS 61.878(1)(a) in the absence of a superior public interest in disclosure.

However, in the instant case, Ms. Wolfford, in her letter of appeal, states:

He claims disclosure would constitute an invasion of personal privacy.

Again, KRS 61.880(1) requires a brief explanation as to how the exemption specifically applies in this case. Chief Gardner fails to do this. Also, the couple already has put the issue in the public domain. Court files in this case and in their recently filed divorce mention the altercation. The victim, Patricia Kay Kerrick, has approached the newspaper about the case, and has talked in depth about the circumstances surrounding it.

Under these facts, the balancing test must be decided in favor of disclosure.

Accordingly, we conclude that the privacy exemption under KRS 61.878(1)(a) was not a proper basis for the Department to withhold the requested records.

It is, therefore, the decision of the Attorney General that the Department improperly withheld disclosure of the investigative file in question and should make the records available for inspection.

The Elizabethtown Police Department may challenge this decision 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

JAMES M. RINGO

ASSISTANT ATTORNEY GENERAL

res/463

Distributed to:

Ruben L. Gardner

Chief of Police

Elizabethtown Police Department

Elizabethtown, KY 42701

Amy Wolfford

Staff Writer

The News-Enterprise

408 West Dixie Avenue

Elizabethtown, KY 42701