Amelkin v. McClure
| Citation | 168 F.3d 893 |
| Decision Date | 30 April 1999 |
| Docket Number | No. 96-5942,96-5942 |
| Parties | 27 Media L. Rep. 1577 Stephen AMELKIN, Broadway Chiropractic; Dr. Brian Christopher Fee; Stuart Lyon; Nicolas Baker; David Kaplan; James W. Chambers; Sidney Hanish; Rhoda Daniels; Thomas H. Watson; Kenneth W. Wall; James Bogard, doing business as Bogard & Associates, Plaintiffs-Appellees, City of Louisville, Division of Police, Plaintiff, v. Ann McCLURE, Document Custodian; Gary Rose, Commissioner of Department of State Police; Ben Chandler, Attorney General, Defendants-Appellants, Justice Cabinet, Department of State Police, Plaintiff/Counter Defendant-Appellant, Jefferson County, Kentucky, Defendant. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Mary J. Lintner (briefed), Donald L. Cox (argued), Lynch, Cox, Gilman & Mahan, Louisville, KY, for Plaintiffs-Appellees.
Denise M. Smith (briefed), Benesch, Friedlander, Coplan & Aronoff, Cincinnati, OH, Laurence J. Zielke (briefed), Pedley, Zielke, Gordinier, Olt & Pence, Louisville, KY, for Plaintiff-Appellant Justice Cabinet.
Steve Durham, Office of the General Counsel, Corrections Cabinet, William B. Pettus, Asst. Atty. Gen. (argued and briefed), Office of the Attorney General, Civil & Environmental Law Division, Frankfort, KY, for Defendant-Appellant Ann McClure and Ben Chandler.
Steve Durham, Office of the General Counsel, Corrections Cabinet, Lucy B. Richardson (argued and briefed), Commonwealth of Kentucky, Justice Cabinet, General Counsel, William B. Pettus, Asst. Atty. Gen., Office of the Attorney General, Civil & Environmental Law Division, Frankfort, KY, for Defendant-Appellant Gary Rose and Justice Cabinet.
Before: SUHRHEINRICH, SILER, and GILMAN, Circuit Judges.
joined. SILER, J. (pp. 902-03), delivered a separate opinion concurring in part and dissenting in part.
A number of attorneys and chiropractors, as well as the proposed publisher of a commercial newspaper to be called The Accidental Journal, filed suit to challenge two Kentucky statutes, one restricting the disbursement of accident reports and the other allowing the state custodian of nonexempt public documents to charge commercial users "a reasonable fee" for producing copies of the reports. The district court permanently enjoined the enforcement of both statutes, finding that they violated the plaintiffs' First Amendment right to freedom of expression. For the reasons set forth below, we AFFIRM the portion of the district court's injunction relating to the amendments restricting the disbursement of accident reports, but VACATE AND REMAND for further proceedings the portion of the district court's order enjoining the amendments that allow the charging of reasonable fees for copying nonexempt public documents.
Until 1994, Kentucky Revised Statutes § 189.635(5) provided that "all accident reports filed with the Department of State Police ... shall remain confidential." Despite the all-encompassing nature of the statutory language, a Kentucky Attorney General's Opinion issued in 1989 determined that the privacy exemption under Kentucky's Open Records Law was "discretionary." This had the effect of making all accident reports accessible to the public. Accident reports soon became a prime source for attorneys and chiropractors in Kentucky to identify prospective clients. As one chiropractor noted: "In order to determine what potential patients would be in need of chiropractic services, I have routinely submitted open records requests to various law enforcement agencies in order to obtain copies of accident reports."
Such accident reports contain the name, address, and driver's license number of those involved in the accident, and a diagram and brief description of the accident itself. After procuring these reports, certain attorneys and chiropractors would use the information contained therein to contact victims and offer their services, often attaching the accompanying accident report to the solicitation letter. Plaintiff James Bogard has in the past made a business out of assisting these attorneys and chiropractors by supplying them with the accident reports that he has obtained from law enforcement agencies. Bogard also intends to publish a newspaper, The Accidental Journal, that will contain copies of accident reports and that will be marketed primarily to attorneys and chiropractors.
The efforts to solicit potential clients through the procurement and use of accident reports became so incessant that those involved in traffic accidents immediately began receiving large stacks of direct mail solicitations from various attorneys and chiropractors. A typical example of such a mailing is reproduced below:
Public records indicate you were involved in an automobile accident recently. You may have been injured at the time of the accident. Often times a person finds there was an injury a day or so after the accident. Sometimes a person is stunned or has a surge of adrenaline that masks the symptoms of injury at the time the accident report is made. If you find that you did suffer personal injury due to the automobile accident, I can help you.
For over thirty years I have been representing people like you against insurance companies. I have the knowledge, the expertise, and most of all, the practical wisdom to guide you.
You are not expected to know the usual or unusual methods that insurance representatives use on injured persons. Do not be misled, misinformed or fall prey to an easy settlement from the insurance company. KNOW YOUR LEGAL RIGHTS.
Protect yourself. Get information from a lawyer. You have one body and it has to serve you your whole life. Make sure you receive the right medical treatment you need.
Just as you expect your doctor to give the proper medical treatment, so should you have an attorney to see that your legal rights are protected. By going to an experienced lawyer you can have the peace of mind that you will be protected and your claim will be well represented.
Not long after the Attorney General's Opinion was issued in 1989, a public groundswell developed against the release of accident reports to attorneys and chiropractors. One editorial described the attorneys who used such accident reports as "greedy, money grubbing lawyers" who seemed "to prey on the misfortunes of others." Ky. Bench & Bar, Summer 1993, at 7. In addition to the solicitations tarnishing the image of the legal community in the eyes of the public, some who received a mailbox full of such letters grew concerned over their personal privacy and safety. One recipient of such direct mail solicitation related his experience as follows:
On April 1, 1993 I was involved in an automobile collision wherein my vehicle was struck in the rear. I was transported to the hospital and was treated for injuries for which I have now recovered.
Shortly after the collision I received via U.S. Mail the following:
1. Solicitation letter from Attorney [A] and a complimentary copy of the police report with his advertisement on the reverse side.
2. Solicitation letter from Attorney [B] and a complimentary copy of the police report.
3. Solicitation letter from Attorney [C].
4. Solicitation letter from Attorney [D].
I additionally received solicitations from various chiropractors but failed to retain that information since it was so voluminous.
Ms. Richardson, if it was my desire to engage the services of an attorney I would do so using my own resources to make such a selection. In addition, I feel that this is a direct infringement upon my right of privacy. It is my desire and constitutional right to maintain privacy. Publicly revealing my home address is unconscionable and unacceptable and a personal affront to my rights.
My occupation is such that it is mandatory that my home address remain confidential. The promulgation of same may place myself as well as my family in danger of physical harm.
(Emphasis in original).
In an attempt to protect accident victims from being hounded by unwanted solicitations from attorneys and chiropractors, the Kentucky general assembly amended § 189.635 and § 61.874 of the Kentucky Revised Statutes in 1994. The relevant text of the amended statutes is reproduced below:
189.635 VEHICLE ACCIDENT REPORTS BY OPERATORS LAW ENFORCEMENT OFFICERS AND AGENCIES--AVAILABILITY TO PARTIES TO ACCIDENT AND NEWS-GATHERING ORGANIZATIONS.
. . . . .
(5) All accident reports filed with the Department of State Police in compliance with subsection (4) above shall remain confidential except that the department may disclose the identity of a person involved in an accident when his identity is not otherwise known or when he denies his presence at an accident. All other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (6) of this section. These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is party to the accident, and the insurers of any party who is the subject of the report, or to the attorneys of the parties.
(6) The report shall be made available to a news-gathering organization, solely for the purpose of publishing or broadcasting the news. The news-gathering organization shall not use or distribute the report, or knowingly allow its use or distribution, for a commercial purpose other than the news- gathering organization's publication or broadcasting of the information in the report. A newspaper, periodical, or radio or television station shall not be held to have used or knowingly allowed the use of the report for a commercial purpose merely because of its...
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