Cape Publications v. City of Louisville, 2002-CA-001659-MR.

• Decision Date: 31 October 2003
• Docket Number: No. 2002-CA-001659-MR.,2002-CA-001659-MR.
• Parties: CAPE PUBLICATIONS, d/b/a The Courier-Journal, Appellant, v. The CITY OF LOUISVILLE, Appellee.
• Court: Kentucky Court of Appeals

147 S.W.3d 731

CAPE PUBLICATIONS, d/b/a The Courier-Journal, Appellant, v. The CITY OF LOUISVILLE, Appellee.

No. 2002-CA-001659-MR.

Court of Appeals of Kentucky.

October 31, 2003.

Case Ordered Published by Court of Appeals January 9, 2004.

Discretionary Review Denied by Supreme Court November 10, 2004.

Jon L. Fleischaker, Kimberly K. Greene, Ashley C. Pack, Louisville, KY, for appellant.

Irv Maze, Jefferson County Attorney, Stephanie Harris, Lisa A. Schweickart, Assistant County Attorneys, Louisville, KY, for appellee.

Before BARBER, McANULTY and TACKETT, Judges.

OPINION

BARBER, Judge.

The Appellant, Cape Publications, d/b/a the Courier-Journal ("Courier-Journal"), appeals from a summary judgment of the Jefferson Circuit Court, upholding an open records decision of the Attorney General. We affirm.

On December 6, 2001, the Courier-Journal initiated an appeal to the Office of the Attorney General, seeking review of a denial of "a continuing open records request"¹ to the City of Louisville, Division of Police. Although incident reports had been disclosed for the months of August, September and October 2001, the victims' names and addresses, and the location of the crimes, had been redacted. On appeal, the Courier-Journal maintained that disclosure of this information did not constitute an unwarranted invasion of personal privacy, and that the City's blanket redaction policy was inconsistent with the specific case approach envisioned under Kentucky law.

On December 21, 2001, the City filed a response. In support of its position that the names and other personal information of rape and sexual assault victims were properly redacted under KRS 61.878(1)(a), as an unwarranted invasion of privacy, the City explained that:

Last year, a representative from the Center for Women and Children, a non-profit organization, contacted the Louisville Division of Police to express their concern over the release of rape and sexual assault victim's [sic] and addresses being released to members of the media. She indicated that there were instances where members of the media showed up at the victim's home requesting an interview. These innocent people are victims of a horrific crime and the insensitivity to the loss of their privacy right is a classic example of why victim's [sic] names and addresses should be protected. Victims should not have to choose between reporting a crime and exposing their identity; or keeping silent in order to protect their privacy.

On February 22, 2002, the Attorney General issued 02-ORD-36, concluding that the City of Louisville, Division of Police "may redact the names and addresses of the victims of sexual offenses, the location of the offenses if the offenses occurred in the victim's homes, and the complainants' signatures if the complainant and victim are one and the same. No other redactions are permissible." Recognizing that this represented a significant departure from previous open records decisions, the Attorney General modified any of those decisions to the extent they were inconsistent therewith. Moreover, the Attorney General explained that:

We continue to ascribe to the view that the Division may not withhold the identities of all crime victims as a matter of policy, and believe that the majority of cases will be governed by the rule announced in 96-ORD-115 and 99-ORD-27. Further, we believe that in rare instances, such as where the victim of a sexual offense has "gone public," or other circumstances in which the victim has evidenced a waiver of privacy, that victim's privacy interests may be subordinate to the public's interest in disclosure. The position we take today is limited to the names and information identifying victims of sexual offense that appear in incident reports. (Emphasis original).

On March 8, 2002, the Courier-Journal filed an action in the Jefferson Circuit Court challenging the Attorney General's opinion. On May 9, 2002, the parties filed cross-motions for summary judgment. At issue was whether the City's policy of redacting identifying information of alleged sexual offense victims falls within the exemption of the Kentucky Open Records Act, KRS 61.878(1)(a).² On July 22, 2002, the court entered an Opinion and Order granting summary judgment in favor of the City:

It is the opinion of this Court, that the City has met its burden of proof that an exemption exists for non-disclosure of a sexual offense victim's personal information. KRS 61.882(3). In Bloch v. Ribar, 156 F.3d 673, 685 (6th Cir.1998), the Court explicitly discusses personal sexual matters. It stated that "[c]rimes of sexual violence necessarily include a nonconsensual sexual act. The crime of rape, for example, cannot be separated from the sexual act itself. For this reason, a historic social stigma has attached to victims of sexual violence...." Kentucky ... has rape shield laws in place and advocate groups on behalf of these victims.... [T]he City has established that the information of victims is private information. For this Court to rule otherwise, would cause a "chilling effect" in discouraging victims of sexual offenses to come forward and report these types of crimes to their local law enforcement agency.

....

Finally, the Court agrees that police incident reports are matters of public interest and are public records. 93-ORD-42, citing, OAG 76-443. As a result, the public should be allowed to scrutinize the police to ensure they are complying with their statutory duties. However, the public's knowledge of police compliance should not come at the expense of its citizens who have been victims in sexual offenses.... Therefore, this Court rules that the City has met its burden of proof in establishing that the identifying information concerning victims of sexual offenses is of a private nature and to disclose that information to the public would constitute a "clearly unwarranted invasion of personal privacy." In the context of sexual offense victims, the personal privacy interests of the victim's [sic] clearly tips the balance in favor of their privacy versus the public's need to monitor policy activity.

On August 1, 2002, the Courier-Journal filed a notice of appeal to this Court. On appeal, the Courier-Journal asserts that free and open access to public records is the beacon of the Open Records Act, KRS 61.871; that it is uncontroverted the police incident reports are public records, KRS 61.870(2); that in order to withhold information under the privacy exemption, KRS 61.878(1)(a), the City must first prove that a protectable privacy interest exists — the information in question must touch upon an intimate and personal feature of one's life. The Courier-Journal maintains that the City cannot satisfy its initial burden, because "[t]here is `nothing intimate or personal,' ... about rape, sodomy or any other sexual offense" seemingly quoting from Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co.³ Further, the Courier-Journal argues that were the City able to prove that a protectable privacy issue exists, a balancing of the private versus the public interest must be done on a case-by-case basis, rather than to a category of records.

In Board of Examiners, the Supreme Court concluded that patient complaints of sexual improprieties by a psychologist contained information of an intimate and personal nature. The Courier-Journal had sought access to the complaint file, under the Open Records Act. The Supreme Court determined that further disclosure of information contained in the public record would, as a matter of law, constitute a clearly unwarranted invasion of personal privacy:

[T]he information contained in the complaint file is of a personal nature — indeed, of a very personal nature — and that disclosure of the remainder of the public record in this case would constitute a serious invasion of the personal privacy of those who complained against [the psychologist], as well as other former clients involved in the investigation. The information sought touches upon the most intimate and personal features of private lives.⁴

Once a protectable privacy interest is established, proper application of the Open Records Act requires a "comparative weighing of the antagonistic interests" — the privacy interest versus the policy of openness for the public good.⁵ Board of Examiners reminds us "that the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." ⁶

The Supreme Court examined the nature of the personal privacy interest in Lexington-Fayette Urban County Government v. Lexington Herald-Leader Co. ⁷:

Of primary concern is the nature of the information which is the subject of the requested disclosure; whether it is the type of information about which the public would have little or no legitimate interest but which would be likely to cause serious personal embarrassment or humiliation. The Court had no difficulty concluding in Board of Examiners of Psychologists that information which would have revealed the identities of persons who had been sexually victimized should not be produced. In Zink [⁸] the information sought did not implicate any significant public interest but did transgress, albeit not greatly, upon the privacy of the subject individuals. Beckham[⁹] held that privacy rights may extend to citizens who are not parties to the Open Records request but who would be substantially affected by the disclosure.¹⁰

The Supreme Court noted that "Beckham highly valued the personal privacy exclusion and recognized an expansive right of persons who might be affected by the release of governmental information to be heard on their privacy claim."

In Bowling v. Brandenburg,¹¹ a panel of the Court of Appeals upheld a 911 caller's right to privacy when seeking police assistance. "Releasing the tapes of 911 calls seeking police assistance, particularly in instances of domestic violence, would have a chilling...