In the opinion of the Attorney General
Records shouldn’t have been redacted

The Kentucky Attorney General has ruled in favor of a Lexington Herald-Leader reporter’s efforts to overturn a police department decision.

The issue at hand in this appeal to the Attorney General’s office is whether the Lexington-Fayette Urban County Government Division of Police properly used state laws to partially deny Lexington Herald-Leader reporter Delano Massey’s May 4, 2005 request for “the case file for a rape allegation at the University of Kentucky Wildcat Lodge … on April 20, 2005” and reporter Valerie Spears Nov. 11, 2005 request for “any additions made to the Wildcat Lodge alleged rape investigation file since May 4 and/or the Herald-Leader’s last request on file.”

The Attorney General has ruled the reasoning behind the denial was “misplaced.”

In its June 2. 2005 response, the police division released a redacted copy of the case file, stating “this case is cleared by exception and is available to you, subject to the following: ‘pursuant to KRS 61.878(1)(a) and OAG 91-35, when no suspect is arrested or charged with a crime, the suspect has an expectation of privacy. Pursuant to the above referenced statute and Attorney General’s opinion, all information and documents identifying the suspect will be redacted and are exempt from disclosure.

The police’s Nov. 29, 2005 response to The Herald-Leader’s Nov. 11, 2005 request mirrored its partial denial of the earlier request.

On Feb. 3, The Herald-Leader initiated this appeal, asserting that “the police’s reliance on KRS 61.878(1)(a) to support redaction of suspect identities from all case files cleared by exception where a suspect was not arrested is erroneous and improper pursuant to the opinions of the Kentucky Attorney General and clear Kentucky common law.”

In a follow-up directed to the office of the Attorney General, the police said that the 940 records from the investigative file were released to the public after the police concluded its investigation and cleared the case by exception and that both the Fayette County and Commonwealth’s Attorneys reviewed the case and refused to prosecute.

Noting that in previous opinions, the Attorney General has said that releasing the name of a person investigated but not charged with criminal activity represents a severe intrusion on the privacy interests of the individual in question and should yield only where exceptional interests mitigate in favor of disclosure.

The Lexington police contended that “nothing can be more intrusive than to be linked to a criminal allegations where three independent and district government agencies have found that no crime has been committed.”

Because some of the individuals involved in the case lose a certain degree of privacy because of their status as a public figure, the AG found that the information should have been released.

In its decision, the AG’s office said that disclosure of a suspect’s identity will, in fact, advance the open records related public interest in insuring that the alleged criminal activity was thoroughly investigated and vigorously prosecuted without favoritism or bias and transgress only minimally on the privacy interests of the suspect.

“Accordingly, we find that the Division’s reliance on KRS 61.878 (1) (a) to support redaction of the suspect’s identity from the requested records was misplaced,” the opinion said.

Although a public figure does have an expectation of privacy, the public also has a right to know that potentially criminal activity is being investigated without outside influence on the police.

The office said police erred with using existing regulations to withhold the information from the newspaper.

“To the extent that the Division construes OAG 91-35 to authorize nondisclosure of the suspect’s identity in all criminal cases that are cleared by exception, that decision is hearby notified, “ the opinion said.

The Lexington police were ordered to turn over unredacted copies of the records in question.

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