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Kentucky New Era, Inc. v. City of Hopkinsville

Supreme Court of Kentucky

December 19, 2013

CITY OF HOPKINSVILLE, Kentucky, Appellee.

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[Copyrighted Material Omitted]

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Jon L. Fleischaker, Jeremy Stuart Rogers, Louisville, Counsel for Appellant.

Howard Douglas Willen, John Foster Cotthoff, Counsel for Appellee.


ABRAMSON, Justice.

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

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involving stalking, harassment or terroristic threatening. The City Clerk withheld some records, including those involving juveniles and open cases, and redacted from others certain types of personal data, such as, in some instances, the names, and in all instances the social security numbers, driver's license numbers, telephone numbers, and complete home addresses of victims, witnesses, and suspects. Following proceedings in circuit court, including an in camera review, New Era received redacted copies of all the requested records, with the only allowed redactions being social security numbers, driver's license numbers, home addresses and telephone numbers. We granted New Era's motion for discretionary review to consider its claim that in upholding these redactions, as well as the City's right to redact the names of all juveniles in the records, the Court of Appeals misapplied the Open Records Act, in particular the Act's exemption for records the disclosure of which " would constitute a clearly unwarranted invasion of personal privacy." KRS 61.878(1)(a). Convinced that the Court of Appeals correctly applied the Act's privacy exemption, we affirm its decision.


In September 2009, the New Era requested the following records from the Hopkinsville City Clerk:

All ... Hopkinsville Police Department arrest citations from Jan. 1, 2009 until Aug. 31, 2009, resulting in any of the following charges: first-degree stalking, second-degree stalking, harassing communications, harassment, first-degree terroristic threatening, second-degree terroristic threatening or third-degree terroristic threatening.... Any and all ... Hopkinsville Police Department reports from Jan. 1, 2009 until Aug. 31, 2009, which may not have resulted in arrests, reporting any threats made toward an individual or a group of individuals. This includes KYIBRS [Kentucky Incident Based Reporting System] reports and draft reports.[1]

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

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juvenile, and he also agreed with the newspaper that the City's privacy redactions did not comport with the Act's requirement that exemptions be applied narrowly. Rather, the Attorney General believed, the Act required that the records be released without redactions " absent a particularized showing of a heightened privacy interest in an individual record." 09-ORD-201 at 7 (citation and internal quotation marks omitted).[2]

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.


I. In Law Enforcement Records, Personal Information About Identifiable Private Individuals Is Generally Exempt From ...

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