Opinion of the Court by Justice ABRAMSON.
Concerned that the Hopkinsville Police Department might be responding inconsistently to similar criminal complaints, a writer for the Kentucky New Era, Inc., a newspaper serving Hopkinsville and the surrounding area, sought from the Hopkinsville City Clerk pursuant to the Kentucky Open Records Act (Kentucky Revised Statutes (KRS) 61.870 to 61.884, hereinafter "ORA" or "the Act") copies of arrest citations and police incident reports from January 1 through August 31, 2009
RELEVANT FACTS
In September 2009, the New Era requested the following records from the Hopkinsville City Clerk:
According to New Era's brief, the newspaper wanted to analyze "various differences" in how the City's police treated stalking, harassment, and terroristic threatening complaints, and in particular hoped to understand, perhaps by interviewing the persons involved in the incidents, why the police "made arrests and pursued charges in some situations but not in others."
Less than two weeks later, the City released some 440 pages of arrest and incident records. It withheld, however, some records in their entirety, including records reflecting any involvement by a juvenile, be it as a suspect, victim, or witness, and records involving open cases. The City also made redactions from some of the records it released. Invoking the privacy exemption (the only exemption still at issue in the case before us), the City initially redacted not only the personal identification data noted above, but also such demographic data as birth date, marital status, gender, race, and ethnicity.
Dissatisfied with the City's withholdings and redactions, the newspaper, pursuant to KRS 61.880, sought review by the Attorney General. The Attorney General agreed with the newspaper that an entire record was not rendered exempt merely because it mentioned, in some capacity, a
The City thereupon initiated a KRS 61.882 action in the Christian Circuit Court. It sought, essentially, declaratory relief to the effect that its decisions to withhold and to redact records did not violate the ORA. Presented with cross-motions for summary judgment and after (on the City's motion to alter or amend) having compared in camera the redacted and the unredacted versions of the records, the circuit court ultimately ruled that the City's redactions of social security and driver's license numbers, of home addresses, and of telephone numbers comported with the Act. However, in the court's view, the privacy exemption did not authorize the wholesale redaction of demographic data, a ruling not challenged on appeal. Further the circuit court held that records involving juveniles, although possibly subject to privacy redactions, were not made totally exempt by the statute (KRS 610.320) which calls for the nondisclosure of a juvenile's court records.
Both sides appealed, and as noted above, the Court of Appeals upheld the City's redactions of personal identification data. The Court went a step beyond the trial court's ruling, furthermore, and held that under the privacy exemption the names of juveniles, as well as any other information individually identifying them, could be redacted from the requested records. So ruling, the Court declined to address the City's KRS 610.320 argument to the effect that law enforcement records mentioning juveniles are exempt in toto from the ORA. Content, apparently, with the ability to redact the names of juveniles and their personal data, the City did not pursue its broader claim.
The newspaper, on the other hand, maintains that the Court of Appeals has made an unduly expansive reading of the privacy exemption, a reading at odds, it insists, with the ORA's terms and purposes and one in derogation of the pertinent case law. In particular, the newspaper contends that the Court of Appeals' ruling misconceives the balance to be struck under the Act between the individual's interest in privacy and the public's interest in disclosure. The newspaper also contends that what it refers to as the City's "blanket" redaction policy violates the Act's requirement that exemptions be applied only on a case-by-case basis with reference to the facts pertaining to each separate record. Because in our view the Court of Appeals (and the trial court) correctly identified and compared the individual and public interests involved, and because the City's redaction policy as modified by the courts is a reasonable response to a legitimate privacy concern, we affirm.
ANALYSIS
I. In Law Enforcement Records, Personal Information About Identifiable Private Individuals Is Generally Exempt From The Open Records Act.
Originally enacted in 1976,
The General Assembly also recognized, however, that public dissemination of some agency information is not in the public interest. It has provided, therefore, for certain exceptions to the general rule of openness. KRS 61.878 currently excludes from the Act's application fourteen different types of records and provides that such records "shall be subject to inspection only upon order of a court of competent jurisdiction." KRS 61.878(1). To preserve the Act's presumption in favor of open examination, the General Assembly has declared that these exceptions to the rule "shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.871. Additionally, the legislature has placed the burden of proving that a record is exempt from disclosure on the agency asserting the exemption. KRS 61.882(3).
Typically, the agency will attempt to carry that burden by identifying, by affidavit or otherwise, the record or information withheld, the exemption or exemptions claimed, and the reasons why the withheld information falls within the claimed exemption. The agency's explanation must be detailed enough to permit the court to assess its claim and the opposing party to challenge it. Whether the matter
The exemption at issue here, the privacy exemption, excludes from the Act's disclosure provisions "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(l)(a). Because the exemption applies only to "unwarranted" invasions of personal privacy and not to just any invasion, to determine whether a record was properly withheld "there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests." Bd. of Examiners, 826 S.W.2d at 327. We must balance the interest in personal privacy the General Assembly meant to protect, on the one hand, against, on the other, the public interest in disclosure.
Turning first to the privacy side of the balance, we may note, as the United States Supreme Court has explained, that an individual's interest in personal privacy is not limited to his or her interest in keeping personal facts completely secret. "`In an organized society, there are few facts that are not at one time or another divulged to another.'" United States Department of Defense v. Federal Labor Relations Authority, 510 U.S. 487, 500, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (FLRA).
United States Department of State v. The Washington Post Company, 456 U.S. 595, 602, 102 S.Ct. 1957, 72 L.Ed.2d 358 (1982)
The individual's interest becomes stronger with regard to personal information the dissemination of which could subject him or her to adverse repercussions. Such repercussions can include embarrassment, stigma, reprisal, all the way to threats of physical harm. Department of State v. Ray, 502 U.S. 164, 177 n. 12, 112 S.Ct. 541, 116 L.Ed.2d 526 (1991) (holding that individuals interviewed by the State Department had a significant privacy interest in having their identities redacted from reports of the interviews where disclosure would subject them "to possible embarrassment and retaliatory action."). In Board of Examiners, for example, we upheld the non-disclosure of personal information about the patients of a psychologist who had been accused of impropriety and noted the patients' overriding interest in being spared the embarrassment of having sensitive personal information made public. 826 S.W.2d at 328. Similarly, in Cape Publications v. City of Louisville, 147 S.W.3d 731 (Ky.App.2003), the Court of Appeals upheld a police department's policy of redacting from its incident reports the identities of the victims of sexual offenses. The Court noted the inherently embarrassing and traumatic nature of those offenses and held that the victims of such crimes "share a substantial privacy interest in the nondisclosure of their identities." 147 S.W.3d at 735.
To implicate an individual's privacy interest, moreover, the adverse repercussions of public disclosure need not be severe. In FLRA, for example, the Supreme Court considered whether the FOIA required federal agencies to release the home addresses of their civil service employees to a labor union interested in soliciting members. Holding that disclosure was not required, the Court found it clear that the employees had at least "some nontrivial privacy interest in ... avoiding the influx of union-related mail, and, perhaps, union-related telephone calls or visits, that would follow disclosure." 510 U.S. at 501, 114 S.Ct. 1006 (emphasis in the original).
Similarly, in Zink v. Department of Workers' Claims, Labor Cabinet, 902 S.W.2d 825 (Ky.App.1994), our Kentucky Court of Appeals held that the Labor Cabinet was not required to release the home addresses and phone numbers of injured workers to an attorney hoping to solicit clients. Noting that the privacy of the home is deeply rooted in our laws and traditions, the Court recognized that injured workers have a substantial interest in not being "subjected to unsolicited mail from appellant and perhaps offensive mail or telephone calls from others." 902 S.W.2d at 829.
Private citizens, moreover, have a compelling interest in the privacy of law enforcement records pertaining to them. So compelling, indeed, that the U.S. Supreme Court has held "as a categorical matter that a third party's request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen's privacy." Reporters Committee, 489 U.S. at 780, 109 S.Ct. 1468. The record at issue and found not subject to disclosure in Reporters Committee was a "rap sheet," or criminal history, compiled by the Federal Bureau of Investigation (FBI). Notwithstanding the fact that the individual pieces of information making up the compilation were matters of public record, the Court found the subject's reputational interest in nondisclosure of the FBI's compilation more than enough to outweigh what the Court believed to be a negligible public interest in disclosure.
541 U.S. at 166, 124 S.Ct. 1570 (quoting Reporters Committee, 489 U.S. at 756 and 756 n. 9, 777 n. 22, 109 S.Ct. 1468).
In the wake of Reporters Committee and Favish, the federal courts have held that the names, addresses, and other identifying details of private individuals appearing in law enforcement records are generally exempt from disclosure under the FOIA, unless access to them is necessary to confirm or refute substantial evidence that the agency is engaged in improper conduct or is necessary otherwise to reveal "`matters of substantive law enforcement policy.'" American Civil Liberties Union v. United States Department of Justice, 655 F.3d 1, 14 (D.C.Cir.2011) (quoting Reporters Committee, 489 U.S. at 766 n. 18, 109 S.Ct. 1468); Lahr v. National Transportation Safety Board, 569 F.3d 964 (9th Cir.2009).
This substantial body of federal case law soundly refutes any suggestion that the privacy interest analysis can be short-circuited by simply observing that "everyone knows" that one's name, address and phone number are not "private." While one's name may be known to everyone he or she comes in contact with on a daily basis and one's address and phone number may be shared with employers, schools, civic organizations, service providers, charitable and religious groups and others, an individual's sharing of this personal information with others does not forfeit all privacy interest in that information, regardless of the context in which it appears. An individual's willingness to associate him or herself publicly with a job, a school, a religious organization, does not imply a willingness to be associated publicly with a law enforcement investigation. Simply put, information need not be secret in order to be deserving of privacy protection. This fundamental point deserves particular emphasis in the context of governmental records where citizens are required, even compelled by law in some instances, to provide private information such as a phone number and residential address that
We have no hesitation in recognizing as the federal courts have, that, absent a statute to the contrary, Kentucky's private citizens retain a more than de minimus interest in the confidentiality of the personally identifiable information collected from them by the state.
Agreeing with the Courts below that significant privacy interests are at stake, we must next turn to the public interests in disclosure in order to determine whether, notwithstanding the privacy interests, the Act nevertheless requires that the addresses and other disputed pieces of information be disclosed. Disclosure is mandated, under the Act, unless it would be "clearly unwarranted," and breaches of the substantial privacy interests at issue here would clearly not be warranted except to serve the basic purpose of the Act. That purpose is to open the operations and activities of the state's agencies to public scrutiny, to "reveal whether the public servants are indeed serving the public," Bd. of Examiners, 826 S.W.2d at 328, or, as the Supreme Court has put it, to enable citizens "to be informed about what their government is up to." FLRA, 510 U.S. at 495, 114 S.Ct. 1006. That means, in the first place, that any private interest the requester may have in the information is irrelevant. Under the Act, records that are open are
On the other hand, where the disclosure of certain information about private citizens sheds significant light on an agency's conduct, we have held that the citizen's privacy interest must yield. In Cape Publications, Inc., v. University of Louisville Foundation, Inc., 260 S.W.3d 818 (Ky. 2008), for example, we held that because donors to a public university might hope to influence with their donations the university's policies or decisions or to receive benefits from the university in return, the donors' identities and the amounts of their gifts came within the ORA's disclosure provisions, notwithstanding the breach of privacy thereby entailed.
Similarly, in Central Kentucky News-Journal v. George, 306 S.W.3d 41 (Ky. 2010) and Lexington-Fayette Urban County Government v. Lexington Herald-Leader Company, 941 S.W.2d 469 (Ky. 1997), we held that settlement agreements in law suits brought by private citizens against, respectively, a school board and a police department, were subject to disclosure. The public's keen interest in knowing the amount of public funds paid out by the agencies in compensation for what injuries to whom easily outweighed, we explained, the recipients' interest in keeping the settlements private.
Where the public interest is more attenuated, however, we have held that disclosure of private information was not warranted. In Bd. of Examiners, as noted, we concluded that highly personal patient information revealed to the agency in the course of its investigation into alleged wrong doing by a private psychologist was not to be disclosed notwithstanding whatever interest the public might have in assessing the quality and thoroughness of the agency's performance of its regulatory duties. At least in the absence of any substantial reason to believe that the agency had not "effectually promoted the public interest in regulation," 826 S.W.2d at 328, we noted that disclosure of the private information would not serve the public interest and was not required merely "to satisfy the public's curiosity." Id.
There is no question in this case of private citizens influencing public policy or being paid public funds. Rather, as in Bd. of Examiners, the public interest the newspaper relies on here is the interest in "monitoring" the police department's performance of its investigatory and law enforcement duties. As it now stands, the newspaper will be given the names of those involved (suspects, victims and witnesses) except in the case of juveniles. The newspaper insists their "monitoring" interest is frustrated if the City does not also disclose the addresses of the persons involved, because without the addresses it is hard to tell whether police resources have been disproportionately devoted to certain areas or neighborhoods. According to the newspaper, the public's interest is also frustrated by the non-disclosure of the personal contact information of those involved, because without that information it is impossible to contact those individuals so as to find out "whether and how public law enforcement officers are performing their duties" and to gain "a complete understanding of what happened."
We certainly agree that the public is entitled to assure itself that the Hopkinsville Police Department is providing equal protection to all parts of the community. We do not agree, however, that that interest can only be vindicated by sacrificing the privacy interests of all those with
We do not agree that adequate agency monitoring requires divulging the contact information of all the private citizens with whom the agency deals. Theoretically, of course, the performance of the police department comes down to the myriad interactions between individual officers and individual citizens, but absent some substantial reason to believe that the redacted arrest and incident reports provided to the newspaper fail adequately to reflect the substance of those interactions and that the private citizens involved could shed meaningful light on some sort of police misfeasance or controversial policy, the public interest in monitoring the police department clearly does not extend to providing phone numbers, addresses and driver's license numbers.
The issue here is very similar to that addressed by the Supreme Court in United States Department of State v. Ray. In that case, Haitians seeking political asylum in the United States sought under the FOIA State Department interviews with other Haitians after their asylum claims had been denied and they had been returned to Haiti. With only a couple of exceptions, the interviewees reported that since their return they had not been mistreated by the Haitian government. The State Department disclosed the interviews, but from most of them it redacted the names and other information identifying the interviewees. The requestors maintained that the redactions were improper, because without the interviewees' identities it would be impossible to contact them to find out whether the State Department had accurately and honestly reported the interviews.
Rejecting that argument and upholding the redactions under the FOIA's general privacy exemption (Exemption 6), the Court noted that there was
Similarly here, if the newspaper's unsupported speculation that the victims, witnesses, and suspects involved in these incidents might be able to shed light on police misconduct were enough to outweigh those persons' substantial privacy interests, as discussed above, then the privacy exemption would be meaningless. Anyone, after all, could engage in such speculation with regard to any private citizen with whom an agency has dealt. We decline a reading of the ORA so clearly at odds with its plain terms. In any event, the newspaper has received the names of all adults involved in the requested records. The added disclosure of the addresses, telephone numbers, social security numbers and driver's license numbers of the victims, witnesses, and uncharged suspects appearing in the requested police arrest and incident reports, adults and juveniles alike, would constitute a clearly unwarranted invasion of personal privacy, as would disclosure of the names of juveniles in any of those contexts. Consequently, the City's redaction of that information did not contravene the ORA.
II. The City's Categorical Redaction Policy Does Not Violate the Open Records Act.
Against this conclusion, the newspaper contends that even if the redaction of personal identifiers might be justified in some cases, the City's "blanket" policy of redacting all, or nearly all such information from every report violates the ORA's express policy that its exemptions be "strictly construed." KRS 61.871. That policy requires, according to the newspaper, that all privacy redactions be determined on a "case-by-case, fact-specific" basis. The Attorney General, too, was concerned that the City's general policy ran afoul of the Act's requirement that exemptions be applied narrowly.
As the newspaper correctly notes, the Act forbids blanket denials of ORA requests, i.e., the nondisclosure of an entire record or file on the ground that some part of the record or file is exempt: "If any public record contains material which is not excepted under this section [KRS 61.878], the public agency shall separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). Of course the City's redaction policy is not "blanket" in this sense. On the contrary, the City has complied scrupulously with KRS 61.878(4) by "making available for examination" the requested records after having separated, in its view, the excepted private information from the nonexcepted public information.
The City's redaction policy is more accurately referred to as a "categorical" one. The City has determined that with respect to a particular, recurring class of information — information identifying private citizens in its police reports — the privacy/ public-interest balancing so characteristically tips in one direction — privacy — that it is appropriate to withhold, categorically, information in that class. In NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978), the Supreme Court addressed this issue. It distinguished under the FOIA (which also requires that its exemptions be strictly construed), between blanket non-disclosures and categorical ones and upheld the categorical nondisclosure of witness statements taken prior to NLRB enforcement proceedings.
The Court subsequently confirmed the potential propriety of categorical nondisclosures
In Reporters Committee, finally, as noted above, the Court extended this approach to the privacy exemption. It not only approved, under that exemption, the use, where appropriate, of "categorical balanc[ing]," id. at 777, 109 S.Ct. 1468, but held, with respect to the very sort of information at issue here, that "as a categorical matter ... a third party's request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen's privacy." 489 U.S. at 780, 109 S.Ct. 1468 (emphasis added).
Because it may be presumed that the General Assembly likewise intends that the ORA be "workable," see, e.g., KRS 61.872(6) (authorizing the agency to deny requests that create "an unreasonable burden"), we find the U.S. Supreme Court's common-sense approach to the federal exemptions persuasive. We agree that with respect to discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption, the agency need not undertake an ad hoc analysis of the exemption's application to such information in each instance, but may apply a categorical rule. But see The Nation Magazine, Washington Bureau v. United States Customs Service, 71 F.3d 885 (D.C.Cir.1995) (noting that in cases that are not routine an otherwise appropriate categorical rule may not apply). Since, with respect to law enforcement records, a private citizen's privacy interest in not being identified therein by address, phone number, social security number, or the other forms of personal information at issue here will almost always be substantial, and the public interest in disclosure rarely so, we think the City's categorical redaction of such information was, in this case, a reasonable application of KRS 61.878(1)(a).
CONCLUSION
In sum, the Open Records Act is meant to open the state's public agencies to meaningful public oversight, to enable Kentuckians to know "what their government is up to." It is not meant to turn the state's agencies into clearing houses of personal information about private citizens readily available to anyone upon request. To insure that that is not its effect, the ORA includes an express exemption for agency records the disclosure of which would amount to a clearly unwarranted invasion of personal privacy. The City of Hopkinsville has justly concluded that the public disclosure of the social security numbers, the driver's license numbers, the home addresses, and the phone numbers of victims, witnesses, and uncharged suspects appearing in its police department's arrest and incident reports, as well as all references to juveniles, would constitute, in the vast majority of cases, a clearly unwarranted invasion of those persons' privacy. Its policy of redacting that information before disclosing the reports is in accordance with the Act. The Court of Appeals having correctly so ruled, we hereby affirm its decision.
All sitting. All concur.
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