TO BE PUBLISHED

96-ORD-115

May 21, 1996

In re: Lexington Herald-Leader Company/

Lexington Fayette Urban County Division of Police

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Lexington Fayette Urban County Division of Police's denial of James L. Thomerson's October 25, 1995, open records request. On behalf of his client, The Lexington Herald-Leader Company, Mr. Thomerson asked for an unedited copy of the incident report of a shooting which occurred on October 23, 1995. The Division of Police had previously furnished a copy of the report to a Herald-Leader reporter, Bridget Mounts, after redacting the name of the juvenile who was wounded, and the name of her mother, who was the complainant.

Responding to Mr. Thomerson's request, Linda K. Ain, corporate counsel for the Lexington Fayette Urban County Government's Department of Law, advised that the information withheld was exempt from disclosure pursuant to KRS 61.878(1)(a) and 93-ORD-42. It was LFUCG's position that the privacy interest of the juvenile victim was superior to the public's interest in ascertaining her identity. The Herald-Leader challenges this position.

We are asked to determine if the Division of Police properly relied on KRS 61.878(1)(a) in denying the Herald-Leader access to those portions of the incident report which identify the juvenile victim and her mother. For the reasons set forth below, and upon the authorities cited, we conclude that although a policy of blanket exclusion relative to information pertaining to juvenile victims of crime is impermissible under the Open Records Act, the Division of Police properly denied the Herald-Leader's request on the facts of this case.

Among the documents which may be excluded from the mandatory disclosure provisions of the Open Records Law are:

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

KRS 61.878(1)(a). In Kentucky Board of Examiners of Psychologists v. 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,” Kentucky Board of Examiners, 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.

The Supreme Court characterized these “antagonistic interests” as the public's interest in knowing whether its agencies are properly executing their statutory functions, and the individual's interest in the nondisclosure of records that touch upon the intimate or personal features of his or her life. The court concluded its analysis with the observation that “the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity.” Kentucky Board of Examiners, at 328.

In applying this test, we must first determine whether the disputed information is of a personal nature. If we conclude that it is, we must next determine whether public disclosure would constitute a clearly unwarranted invasion of personal privacy. Resolution of the latter question turns on whether the harm to personal privacy which would result from disclosure of the information exceeds the benefit to the public. As noted, the “clearly unwarranted” language found at KRS 61.878(1)(a) tips the scales in favor of disclosure.

We recognize that the General Assembly has demonstrated a strong commitment to “the protection and care of children.” KRS 600.010(a). This commitment is evidenced in various provisions of the Kentucky Revised Statutes relating to the treatment and discipline of children, and the confidentiality of records relating to treatment and discipline. [1] See, e.g., KRS 620.050(4) limiting disclosure of information obtained as a result of an investigation into allegations of child abuse, dependency, or neglect; KRS 610.320(3) limiting disclosure of juvenile law enforcement records; and KRS 610.340 limiting disclosure of juvenile court records. None of these provisions are directly relevant here. Nevertheless, we believe that each manifests a legislative intent to extend special protection to children. It is with these principles in mind that we must identify the competing interests.

This office has traditionally taken the position that the identities of victims of crime are not, in general, exempt from public inspection. Thus, at page one of OAG 80-144, we observed:

Secret police activity without some overriding justification is repugnant to the American system of government. Consequently, when a citizen reports a crime to the police he may generally expect that the news media will learn of the report.

. . .

[I]f a citizen wants the services of . . . [a law enforcement agency] to investigate a crime, he cannot expect that the matter will be kept secret.

See also, 93-ORD-13 (holding that a public agency cannot adopt a policy of blanket nondisclosure relative to the identities of rape victims); 94-ORD-133 (holding that a public agency cannot adopt a policy of blanket nondisclosure relative to entries on a 911 dispatch log).

The narrow question presented in this appeal is whether juvenile victims of crime have a heightened privacy interest in records relating to the crimes against them, and are thus entitled to greater protection under KRS 61.878(1)(a) than adult victims of crime generally receive. We believe that there is, in fact, a public policy which militates in favor of protecting the privacy of juvenile victims of crime, and which is consistent with the policies evidenced in the Unified Juvenile Code, but we stop short of approving a policy of blanket nondisclosure relative to records disclosing the identities of juvenile victims of crime. We find 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.

In 93-ORD-42, this office required the Kentucky State Police to disclose records pertaining to an adult who had been charged with sexual crimes against two female juveniles, but permitted the State Police to redact those portions of the records relating to the juvenile victims. There, we concluded that disclosure of the victims' identities would constitute a clearly unwarranted invasion of personal privacy. Given the nature of the charges, the likelihood that the juveniles would be further traumatized and stigmatized by disclosure of the facts giving rise to the charges, and the juveniles' heightened privacy interest in records relating to the charges, we concluded that the State Police could properly withhold the names of the juveniles and other personally identifiable information. At page 5 of that decision, we reasoned:

There can be little doubt that the allegations of sodomy, sexual abuse, and unlawful transaction with a minor made . . . 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.

We believe that the logic of that decision can be extended to the instant appeal. Although the assault charge in this case does not stem from sexual improprieties, it is our opinion that in view of the nature of the crime, the juvenile is entitled to protection of her privacy. An assault charge is closely akin to charges of sodomy and sexual abuse, and the juvenile victim of such a crime has a cognizable privacy interest in nondisclosure of her identity.

The countervailing public interest is an important one. The Herald-Leader argues that it cannot adequately investigate this newsworthy story unless it has access to the victim. “Without the identity of the victim,” Mr. Thomerson asserts, “the main avenue to further information is closed.” The public interest will thus be furthered by “derivative use” of the information withheld. This concept has been expressly recognized by a number of lower courts in the federal system, although it has not yet been approved by the United States Supreme Court. [2] Under this concept, the public interest served is dependent upon the requester's use of the identifying information to question the individuals identified about the public agency's diligence in discharging its duties. Thus, in Ray v. United States Department of Justice, 852 F.Supp. 1558, 1564-65 (S.D.Fla. 1994), a federal district court found a “derivative use” public interest in the release of a list containing the names of Haitian nationals returned to Haiti which enabled the requester to conduct follow-up interviews for purposes of determining if the INS is performing its duties. See also, Public Citizens, Inc. v. RTC, No. 92-0010, slip op. at 8-9 (D.D.C. March 19, 1993); Thott v. U.S. Dep't. of the Interior, No. 93-0177-B, slip op. at 5-6 (D. Me April 14, 1994). This office has also implicitly recognized the concept of “derivative use.” See e.g., 94-ORD-133, holding that release of the identities of 911 callers “will facilitate the public's ability to monitor the [911] Dispatch Center's performance by enabling the public to ascertain who, if anyone, is misusing or abusing the system by making unreasonable demands on the service or calling in false reports[,] . . . to assess the effectiveness of the services through direct communication with persons who have availed themselves of the services[, and] to evaluate whether services are rendered in a uniform matter regardless of the callers' identities.” (Emphasis added.)

Having identified the privacy interest and public interest at stake in this appeal, we must next weigh these competing interests and determine whether the harm to personal privacy resulting from disclosure outweighs the benefit to the public. On the facts of this case, we believe that it does. In reaching this determination, we consider 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. These factors, coupled with the heightened privacy interest with which children have been legislatively invested, compel this result. We therefore conclude that the Division of Police properly withheld the name of the juvenile victim, and other personally identifiable information, in this case the name of her mother.

As noted, we believe that the policy of categorical nondisclosure of the names of juvenile victims of crime adopted by the Division of Police is inconsistent with the law. This office has repeatedly recognized that “[i]n order to be exempted from inspection . . ., particulars regarding given notations on [a public record] would have to be articulated in terms of the requirements of the statute.” OAG 89-20, p. 3; 94-ORD-133, p. 5. As interpreted by the Kentucky Supreme Court, the Court of Appeals, and this office, public agencies which invoke KRS 61.878(1)(a) to authorize nondisclosure of public records or entries on public records must do so with particularity, and on a case by case basis. “[T]he circumstances of a given case will affect the balance.” Board of Examiners, at 328. Obviously, the privacy interest of a juvenile who is the victim of sodomy and sexual abuse, or in this case, assault, must be assigned greater weight than the privacy interests of a juvenile whose tennis shoes are stolen from his locker. In the latter case, the public's interest in disclosure, such as it is, almost certainly outweighs the juvenile's privacy interests.

In summary, we conclude that the Lexington Fayette Urban County Division of Policy properly relied on KRS 61.878(1)(a) in denying the Lexington Herald-Leader's request for an unedited copy of an incident report relating to the shooting of a juvenile. Although we do not endorse a policy of blanket nondisclosure relative to the names of juvenile victims of crime, along with personally identifiable information, we find that depending on the nature and circumstances of the crime, the juvenile's privacy interest may be superior to the public's interest in disclosure. Such is the case in the instant appeal.

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

ATTORNEY GENERAL

AMYE L. BENSENHAVER

ASSISTANT ATTORNEY GENERAL

aps/1585

Distributed to:

Larry Walsh

Chief of Police

Lexington-Fayette Urban County Government

150 East Main Street

Lexington KY 40507

James L. Thomerson

Stoll, Keenon & Park

Suite 1000

201 East Main Street

Lexington KY 40507-1380

Linda K. Ain

Corporate Counsel

Lexington-Fayette Urban County Government

200 East Main Street

Lexington KY 40507

Footnotes

[1] We are obviously aware of the significant changes in the laws pertaining to juvenile offenders which were effectuated by the General Assembly in its 1996 Regular Session. In our view, however, these changes do not reflect a waning concern for children, but an increased concern for the victims of crimes committed by children.

[2] See, United States Department of State v. Ray, 112 S.Ct. 541 (1991) (Court declines to decide question).