TO BE PUBLISHED
96-ORD-177
August 22, 1996
In re: Kentucky Commission on Human Rights/City of Louisville
Open Records Decision
This matter comes to the Attorney General on appeal from the City of Louisville's denial of a request for public records submitted by the Kentucky Commission on Human Rights. On June 20, 1996, the Commission requested access to, and copies of, “the Louisville Division of Police informal complaints by citizens against Louisville police officers taking place from January 1995 to the present and the final dispositions of those complaints, including any action recommended from January 1995 to the present.” [1] On July 1, 1996, [2] the city denied the Commission's request “for the same reasons previously asserted in litigation still pending, City v Harris, 95-SC-831-D, No. 94-CI-1546 Jefferson Circuit Court, (KRS 61.878(1)(i) and (j) until the issues are fully resolved in that case.” The city further noted that it did not waive “any other exemptions which may apply and copies ultimately provided may have some information redacted under such exemptions. E.g., KRS 61.878(1)(a).” This appeal followed.
In her letter of appeal, Executive Director Beverly Watts explains that the Commission's request “is made for the purposes of . . . conducting a study of possible disparity in the handling of police complaints and the possibility of other human rights violations.” Continuing, she observes:
The Commission is charged by the General Assembly with enforcing KRS 344. In order to complete its mandate, the Commission needs the information to conduct a thorough study. The request by the Commission is being made to complete a legitimate government function within the meaning of . . . [KRS 61.878] (5). . . .
Moreover, she asserts, the names of third parties should not be redacted from the complaints pursuant to KRS 61.878(1)(a) inasmuch as KRS 61.878(5) overrides that and all other exemptions.
The city responds that the governmental function identified by the Commission “is questionable at best.” Senior Attorney Paul Guagliardo notes that “[t]he telephone calls in question do not relate to alleged discrimination in employment, housing or accommodations.” “If,” Mr. Guagliardo continues, “such a complaint had been filed with the Commission, then it could have asserted all its powers under Chapter 344 to conduct an appropriate investigation and obtain necessary records.” He concludes that Chapter 344 “contains no `mandate' to conduct the study [the Commission] seeks to undertake,” questioning whether the Commission's “curiosity about such things” qualifies as a “legitimate governmental need” or a “legitimate government function” “such that the Commission can demand records from any state or local agency under KRS 61.878(5).”
In addition, the city reasserts its earlier position relative to notes of unverified telephone complaints against police officers, arguing that these notes are exempt per KRS 61.878(1)(i) and (j). Finally, the city advances the argument that KRS 61.878(1)(a) protects the identities, addresses and phone numbers of complainants who chose not to initiate formal complaints, as well as the police officers against whom the telephone complaints are made. Mr. Guagliardo questions whether the “public's curiosity about whether the citizen made the phone call” and the “public's curiosity about what is being said about the officer” can be said to outweigh the complainants' and officers' right of privacy.
We are asked to determine if the City of Louisville violated provisions of the Open Records Act in denying the Commission on Human Rights access to records containing notations of telephone complaints against police officers which are neither signed nor verified. For the reasons set forth below, we find that, as to the class of open records requesters generally, the city's reliance on KRS 61.878(1)(i) and (j) is misplaced, and that its reliance on KRS 61.878(1)(a) to authorize blanket nondisclosure of the identities of complainants and officers does not find support in recent caselaw. With respect to the Commission specifically, we find that although KRS 61.878(5) is intended to promote agency sharing of records, it is not a mandatory stricture, and the city is not obligated to release otherwise exempt information which appears on the telephone complaints to it.
In 94-ORD-20, a copy of which is attached hereto and incorporated by reference, this office analyzed the applicability of KRS 61.878(1)(i) and (j) to the same records [3] requested by the Commission in this appeal, and concluded that these notations, regardless of whether they spawn further investigation or are deemed sufficient on their face, requiring no further investigation, “must be characterized as . . . complaint[s] to which the public should be afforded access.” 94-ORD-20. We believe that that decision is controlling. Unless an appellate court declares otherwise in a binding precedent, we will continue to adhere to this view.
Turning to the city's second argument, we find that although this office has long recognized that the identity of a complainant can be withheld under KRS 61.878(1)(a) where the complainant's privacy interest outweighs the public's interest in disclosure, [4] a public agency cannot adopt a policy of blanket nondisclosure relative to this or any other piece of information appearing on a public record. At page 8 of 94-ORD-133, this office observed:
[A] generic determination that certain categories of information are excluded from the mandatory disclosure provisions of the Open Records Law under either of these exceptions, or any other exception, does not satisfy the requirements of that law. In reaching this decision, we are guided by several pertinent sections of the law, bearing in mind that the “basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest.” KRS 61.871. First of all, 61.880(2) mandates that the burden of proof in sustaining a public agency's denial of an open records request rests with the agency. Second, an agency can properly rely on KRS 61.878(1)(a) in withholding a record only if it can establish that the public's interest in release of that record is outweighed by the individual's privacy interest. Finally, KRS 61.878(4) makes explicit the requirement of particularized justification by providing, “If any public record contains material which is not excepted under [KRS 61.878], the public agency shall separate the excepted and make the nonexcepted material available for examination.”
Thus, exclusion of a particular entry on a public record must be “articulated in terms of the requirement of the statute.” OAG 89-20, p. 3; see also, 94-ORD-144 (affirming 94-ORD-133), OAG 80-54 (holding that a police department cannot adopt a policy of withholding information relating to rape victims or victims of sex crimes under authority of KRS 61.878(1)(a)). [5]
Thus, in the absence of a particularized showing that an individual complainant's identity was properly withheld, as for example where the complainant requests anonymity or could reasonably expect confidentiality, the city cannot withhold this information. Stated alternatively, if particular entries are properly excludable pursuant to KRS 61.878(1)(a), the city may withhold those entries by providing particularized justification for denial. With respect to the nondisclosure of the police officers' identities, we find that the city is similarly foreclosed from adopting a policy of blanket nondisclosure pursuant to KRS 61.878(1)(a). Moreover, consistent with past open records decisions dealing with public employee discipline, [6] and the significant interest in public oversight of employee discipline, we believe that the city should exercise even greater restraint in withholding the identities of the officers against whom complaints are made, and only upon the strongest possible showing that disclosure would constitute a clearly unwarranted invasion of personal privacy.
The Commission argues that regardless of whether the city might properly rely on KRS 61.878(1)(a), or any other exemption, to authorize nondisclosure of particular entries which appear on the telephone complaints, the Commission itself is entitled to unrestricted access by virtue of KRS 61.878(5). That statute provides:
The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
In recent years, this office has characterized this provision as a mandatory stricture under the terms of which one public agency must exchange public records and share information with another public agency if the latter agency is performing a legitimate public function. [7] While we continue to ascribe to the view that KRS 61.878(5) is aimed at promoting the exchange of information and records to eliminate duplication of effort and conserve resources, and thus should be strongly encouraged, we depart from the view that it is a mandatory provision. To the extent that any prior open records decisions are inconsistent with this position, they are modified accordingly.
In Board of Education v Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109 (1981), the Kentucky Court of Appeals analyzed the language of KRS 61.878(5) in some depth. [8] There, the Urban County Human Rights Commission brought an action to compel the Fayette County Board of Education to disclose the county school system's personnel files for the purpose of permitting investigation of an employee's sex discrimination claim. The court held that portions of the files had “no place in an employment or promotion sex discrimination case and no public interest would be served by complete disclosure.” Board of Education at 111. The court did not consider its views:
to be violative of KRS 61.878[(5)] because nothing contained therein entitles one governmental agency to demand from another information which does not serve a governmental need.
“In other words,” the court concluded, “there is no unqualified right for one entity to examine . . .” the records of another in their entirety and without restrictions. Id. at 111.
To the extent that our prior decisions hint at such an “unqualified right” of access, those decisions are hereby modified. As noted, public agency sharing of records and information is a laudable goal, but each agency must retain a reasonable measure of discretion to decline the invitation to share its records. Accordingly, we find that KRS 61.878(5) notwithstanding the City of Louisville may withhold particular entries appearing on the records at issue in this appeal, where it demonstrates that the public's interest in disclosure is outweighed by the individual's privacy interest. The city may not, with respect to the Commission, or the public generally, adopt a policy of blanket nondisclosure relative to these entries.
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
878
Enclosure
Distributed to:
Beverly L. Watts
Executive Director
Human Rights Commission
the Heyburn Building, 7th Floor
332 West Broadway
Louisville KY 40202
Paul V. Guagliardo
Senior Attorney
City of Louisville
Department of Law
City Hall, Room 200
Louisville KY 40202-2771
[1] In response to an earlier request, the city released signed or verified complaints against police officers, which had been finalized, to the Commission.
[2] The city's original response to the Commission's June 20 request was issued on June 27, but contained an error. The corrected response was issued on July 1.
[3] The city does not state that its record keeping methods have changed, or that the notations at issue in this appeal can be distinguished from those at issue in 94-ORD-20.
[4] See, e.g., OAG 84-315; OAG 85-126; OAG 85-136; OAG 86-60; OAG 89-52; OAG 90-12; 96-ORD- 164.
[5] In so holding, this office stated:
We believe that generally the public interest in police business outweighs any privacy interest of victims, offenders or police personnel. We have opined that records of a police department which are referred to as the “police blotter” or “incident reports” are open to public inspection. OAG 77-102. Such records usually contain the name of the complaining victim. The question you present is whether the police may adopt an exception to the general rule in regard to rape victims. We believe that there is no statutory provision for such an exception.
As we have often observed, a newspaper has the same right of access to public records as has the general public. The public has the right to inspect any public record unless it is made confidential by statute or comes under one of the exemptions in KRS 61.878. We believe it is not for the Attorney General to weigh the equities or rationalize exemptions which are not expressly set forth in law. We interpret the law as it is and not as the way we think it should be. If changes in the law are to be made, they should be made by the legislature and if subtle interpretations are to be made, they should be made by the Court.
It is therefore the opinion of the Attorney General that a police department cannot adopt a policy of withholding the names of victims of crime, including the crime of rape.
[6] See, e.g., OAG 78-133; OAG 88-25 (holding that “disciplinary action taken against a public employee is a matter related to his job performance and a matter about which the public has a right to know”); OAG 91-198; OAG 91-41 (holding that “public service is a public trust”).
[7] See, e.g., 93-ORD-131.
[8] In Marine Management Services, Inc. v Commonwealth, Ky., 906 S.W.2d 318 (1995), the Supreme Court undertook a similar analysis, but resolved the case without reaching the issue of the applicability of KRS 61.878(5).