The Courier Journal today scored a major victory in an open records case involving public access to criminal and traffic citations maintained by the Kentucky State Police in its KyOPS records management system.
http://opinions.kycourts.net/COA/2019-CA-000493.pdf
The Court of Appeals flatly rejected KSP's claim that the Courier's request for an electronic copy of the system—which contains in excess of 8 million records consisting of exempt and nonexempt information—would impose an unreasonable burden on KSP in its April 17 opinion.
KSP argued, in essence, that KyOPS is designed for internal use only and not configured to permit redaction of exempt fields of information such as social security numbers.
For this reason, KSP argued, production of the records requires manual redaction of paper copies of each of the 8 million plus criminal and traffic citations and would impose an unreasonable burden.
Neither then-Attorney General Andy Beshear, Franklin Circuit Court Judge Thomas Wingate, nor the Court of Appeals was persuaded.
https://ag.ky.gov/Priorities/Government-Transparency/orom/2018/18ORD078…
In a strongly worded opinion, the Circuit Court declared:
"When KSP created its data management system as opposed to a database, it chose to create a relationally related data identifying system rather than a linear system that would allow ease of redaction in the case of open records requests. The agency designed a system that clearly cannot comply with Kentucky Open Records Law. It is KSP's duty to provide information to the public as well as efficiently provide public safety to the citizens of the Commonwealth. To use an electronic records management system that does not allow KSP to complete both of these duties with which it is statutorily tasked is an irresponsible, and impermissible, abrogation of its duties. . . . The Court recognizes the burden of either tedious manual redaction or financial costs of creating a new database system. However, evidence does not exist, in accordance with statutes and Kentucky case law, that this burden outweighs the agency's duty to produce public records to requestors. Agency inefficiency cannot restrict the citizenry's liberty interest in accessing information to promote government transparency among all levels of state government."
Rejecting KSP's argument that redacting exempt information from KyOPS constitutes creation of a new record and an unreasonable burden, the Court of Appeals relied on a landmark 2008 Kentucky Supreme Court opinion, Commonwealth v. Chestnut, recognizing that a public agency "should not be able to rely on any inefficiency in its own internal record keeping system to thwart an otherwise proper open records request."
The court reasoned:
"[U]nder KSP's expansive interpretation, an agency could refuse any open records request requiring even minimal redaction on the grounds that it necessitates the creation of a 'new record.' Modifying the KyOPS database to enable redactions by entire categories of information, as opposed to the tedious and time-consuming review of every individual entry, does not constitute creating a new record because the end product of either process would be exactly the same. Presumably, if the Courier Journal had requested only one specific citation from the database, which could have been manually redacted with minimal time and effort, KSP would not have objected on the grounds that it required the creation of a new record or requested costs. *The scale of the request does not alter the character of the material requested. Separating exempt material is not equivalent to creating a new record and is mandated by KRS 61.878(4)*."
The Courier Journal's right to the uniform citations in KyOPS is vindicated; KSP bears the costs associated with redacting the citations; and the public's right to know is strongly reaffirmed.
But will KSP ignore the fact that the Governor — who appointed the current Secretary of the Justice Cabinet and the current Commissioner of State Police —ruled in favor of the Courier Journal, and against KSP, as Kentucky's Attorney General in 2018 and nevertheless petition the Kentucky Supreme Court for discretionary review of the Court of Appeals' opinion affirming then-Attorney General/now Governor Beshear at further expense to taxpayers and needless delay?
