Request By:
Ms. Anthea M. Boarman
Executive Director
Lexington Human Rights Commission
207 North Upper Street
Lexington, Kentucky 40507
Opinion
Opinion By: Robert F. Stephens, Attorney General; John F. Zink, Assistant Attorney General
Re: Opinion Request Open Records Law
As the Executive Director of the Lexington-Fayette Human Right Commission, you have requested an opinion from the Attorney General office concerning your request under the Open Records Act to inspect the records of the Urban County Division of Police as part of and official investigation by your agency of alleged disparity in employment practices.
In answering your question, it is first important to note that the Urban County Division of Police comes within the meaning of "Public Agency" as defined in KRS 61.870(1). As such, the Division of Police would come within the scope of the Open Records Act. This office in OAG 76-424, stated that police records are open to public inspection.
It is also important to note that the Lexington-Fayette Human Rights Commission is a public agency operating under the authority of the laws of the Commonwealth of Kentucky. KRS 344.310 specifically provides for the creation of local human rights commissions by any city or county. This statute provides that the local commission, such as yours, is to provide for the execution of the policies embodied in the state civil rights chapter (KRS 344.010 to 344.385) and under the federal civil rights act.
As mentioned above, the Open Records Act applies to all state and local agencies, including the Urban Division of Police. The Open Records Act mandates that all public records shall be open to public inspection unless they are exempt under KRS 61.878. One such exemption is found at KRS 61.878(1)(a) and deals with public records containing information of a personal nature where disclosure would constitute unwarranted invasion of personal privacy. However, it is the opinion of this office that such an exemption would not apply to a request for inspection made by your agency.
This position is based upon the clear meaning of KRS 61.878(4) which provides:
The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
The above quoted subsection means that the exceptions to the Open Records Act as set out in KRS 61.878(1)(a)-(j) do not prohibit the Lexington-Fayette Human Rights Commission from inspecting the public records of the Division of Police. We note at this point that in order for KRS 61.878(4) to enable your inspection, the "exchange" of the sought information must serve a legitimate governmental need or is necessary in the performance of a legitimate government function.
In your request for this opinion, you stated that the information sought was part of an official investigation of alleged disparity in employment practices within the Division of Police. The Lexington-Fayette Human Rights Commission, as mentioned above, operates pursuant to KRS 344.310 and Chapter 344 of the Kentucky Revised Statutes. KRS 344.020 provides that the purpose of Chapter 344 is to protect the civil rights of all individuals within the Commonwealth. KRS 344.320 authorizes the local commission to investigate charges of discrimination. As such, it is the opinion of this office that the Lexington-Fayette Human Rights Commission comes well within the meaning of KRS 61.878(4) as the request for inspection is pursuant to a legitimate government function. Even if the records are exempt from inspection by the public generally, they should be made available to public agencies for legitimate governmental purposes.
It should also be noted that the state and local human rights commissions have wide ranging powers in the investigation of alleged violations of civil rights under Chapter 344. KRS 344.190(8) provides that authority is given to investigate violations of Chapter 344; KRS 344.190(9) authorizes the compelling of the production of documents subsequent to the filing of a complaint. [See also: KRS 344.180(3)].
In addition, you have stated: "It is my understanding that in order to utilize the Open Records Act, it is incumbent on the seeked of the records to request an Attorney General's Opinion." This is incorrect. The role of the Attorney General comes into play under KRS 61.880 when there has been a denial of the requested inspection
In order to utilize the Open Records Act, the "seeker" need only request the public records from the "custodian" of the records within the particular public agency. The custodian is defined as "the chief administrative or any other officer or employe of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control." [KRS 61.870(3)], emphasis added.
Pursuant to KRS 61.880(1) each public agency shall determise within three (3) days after the receipt of a request to inspect public records, whether to comply with the request. The public agency must notify in writing the person requesting the public records, within the three-day period, of its decision. The response shall be issued by the official custodian.
The Attorney General's office comes into this procedure only after the public agency has denied the requested inspection. KRS 61.880(2) provides that the public agency denying the request shall immediately forward to the Attorney General a copy of the agency's denial response. If the person requesting inspection so requests the Attorney General shall review the denial and issue a written opinion to the agency concerned, stating whether the agency acted consistently with the Open Records Act. At this point, the person seeking inspection may file an action in a circuit court to enforce the purposes of the Open Records Act. [KRS 61.882(1)]. However, in order to envoke the enforcement powers of the circuit court it is unnecessary to seek an Attorney General's opinion on the matter. [KRS 61.882(2)].
In conclusion, it is the opinion of this office that pursuant to the Open Records Act, in general, and KRS 61.878(4), in particular, and in conjunction with your agency's investigative authority, pursuant to Chapter 344 of the Kentucky Revised Statutes, the Lexington-Fayette Human Rights Commission does have the right to inspect the records of the Urban County Division of Police.