The state Court of Appeals ruled against the Kentucky New Era on Friday in a civil lawsuit stemming from the newspaper’s attempt to obtain, through the Kentucky open records law, Hopkinsville police reports. The court sided with the city on three key points, allowing police to withhold information about victims, witnesses and defendants in all police reports.
The court affirmed one decision and reversed two from Christian Circuit Judge Andrew Self’s ruling in May 2010.
Judges Michael Caperton, Laurance VanMeter and Denise Clayton all concurred on the Court of Appeals’ decision. They agreed with Self’s ruling that allows the city to withhold home addresses, telephone numbers and driver’s license numbers of people listed in arrest reports and criminal complaints. This, based on the city’s argument and the court’s ruling, applies to people charged with crimes, and to victims and witnesses in criminal cases. The court reversed Self’s ruling on a dispute between the newspaper and the city about withholding the names of juvenile victims and witnesses, and about the blanket redaction of other identifying information on police reports.
Mayor Dan Kemp said he was pleased with the ruling because the city believes it will protect ongoing police investigations.
“I don’t interpret this ruling applying to cases that are no longer open,” Kemp said.
The ruling makes no distinction between police cases that are open or closed. It has statewide implications and will affect the ability of news media to investigate how law enforcement agencies handle criminal complaints, said the New Era’s attorney, Jon Fleischaker, of Louisville.
Fleischaker said the ruling reflects a misunderstanding of the newspaper’s role to investigate what happens in cases where citizens believe police failed to properly handle their criminal complaint.
“It is often the case that we are investigating inaction as opposed to action. The way you investigate inaction is to go to people who wanted action and didn’t get it,” he said.
By withholding addresses and telephone numbers, an agency prevents the news media from contacting witnesses and victims of crime, Fleischaker said.
City Attorney Doug Willen did not return a phone call from the New Era requesting his response.
The dispute began when the New Era filed an open records request for police reports between Jan. 1 and Aug. 31, 2009, related to allegations of stalking, harassment and terroristic threatening.
The newspaper was investigating the police department’s handling of threat cases after an Aug. 6, 2009, fire at a Jan Drive duplex apartment. A Molotov cocktail triggered the fire. A man suspected of throwing the Molotov cocktail also doused a resident with gasoline, according to police. Neighbors told the New Era the suspect had threatened the couple living in the apartment, and according to court records, he had previously threatened a woman living in the apartment. He was later charged with arson.
The city first withheld all reports in open cases and all reports involving juveniles. (Juvenile court proceedings are closed and the names of juvenile defendants are not released. However, state law does not require police to withhold the names of juvenile who witness or are victims of crimes.)
Of the records released in the city’s initial response, the city redacted a wide range of identifying factors, including a person’s race, gender, date of birth, ethnicity, address and telephone number.
The New Era sought an opinion from Kentucky Attorney General Jack Conway, who ruled in the newspaper’s favor. The city appealed the opinion, and the case went to Christian Circuit Court.
In the first ruling from circuit court, Self agreed with the attorney general. He said the city could not use a blanket policy of redacting — or withholding — identifying information in police reports. The city had to argue on a case-by-case basis why releasing the information was an unwarranted invasion of privacy.
In August 2010, after the city filed a motion for the circuit court to alter, amend or vacate its judgment, Self then ruled the city could routinely redact addresses, telephone numbers, driver’s licenses and Social Security numbers. (The newspaper did not dispute the practice of withholding Social Security numbers.)
In early September, the police department changed a policy — which had been in place for at least 25 years — and began redacting addresses and telephone numbers on the reports it makes available every day to media outlets.
On the question of redacting information from police reports, the appeals court shifted the burden from a public agency to those making open records requests.
Fleischaker, who has represented Kentucky newspapers for more than 25 years in Freedom of Information Act cases, said the court’s decision on that point defies everything he knows about the Kentucky open records law.
The court wrote, “… a proper interpretation of the law allows the public agency to redact records from an open records request at their discretion, but it must meet the burden set forth by KRS 61.878 when the redaction is challenged.” This means that a public agency could withhold a particular piece of information in each record it releases, and it would not have to justify the redaction unless challenged.
New Era Publisher Taylor Hayes said the ruling potentially weakens the open records law and the public’s ability to gauge the activity of public agencies. He said the newspaper is consulting with Fleischaker to determine the newspaper’s options.
“Quite simply, this ruling prevents not just the media but anyone from holding law enforcement officials accountable for how they handle witnesses and victims,” Editor Eli Pace said. “I’ve never seen a public agency anywhere else even try to withhold information as basic as what we were seeking. The court’s ruling is very disheartening.”
Reach Jennifer P. Brown at 270-887-3236 or email@example.com.