Request By:
Theresa L. Holmes, Esq.
Corporate Counsel
Lexington-Fayette Urban County Government
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ms. Sally Denton has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of her request to inspect various records in the custody of the Urban County Government. She also maintains that you are subverting the intent of the Open Records Act. See KRS 61.880(4).
In her letters to Mr. Terry Sellars of the Urban County Government, dated October 30, 1986, Ms. Denton requested that she be permitted to inspect and copy numerous records which she maintained are in the custody of the Urban County Government. By means of ten separate letters Ms. Denton requested access to the Police Department's report of March 24, 1980, pertaining to "The Company" as well as access to police reports pertaining to James Purdy Lambert; Bradley Fred Bryant; Bonnie Kelly; Melanie Flynn; Wallace McClure Kelly; Raymond James Ryan; Andrew Carter Thornton; Ralph Ross and personnel files concerning former police officers Andrew Thornton, Bill Canan, Steve Oliver, Danny Murphy, Jack Hillard, Jay Sylvestro and Rex Hall.
You replied, on behalf of Mr. Sellars, to Ms. Denton's requests in a letter dated November 14, 1986. You advised her that no documents relating to Bonnie Kelly are in the custody of the Urban County Government except an arrest and waiver of extradition report which you sent to her. No documents relating to Ralph Ross are in the custody of the Urban County Government except an arrest record which you furnished. The documents relating to Melanie Flynn are part of an active missing person's file and are not available for inspection pursuant to KRS 61.878(1) (f) and KRS 17.150. No documents relating to Raymond James Ryan are in the custody of the Urban County Government. No documents relating to Wallace McClure Kelly are available except an arrest and waiver of extradition report which you furnished. In regard to documents pertaining to Andrew Carter Thornton, you furnished a copy of a report of assault occurring on February 27, 1982, but you did not provide a copy of an ongoing criminal investigation file relating to Thornton as KRS 61.878(1) (f) and KRS 17.150 permit you to exclude such documents at this time. No documents relating to Bradley Fred Bryant remain in the custody of the Urban County Government except an arrest report, a copy of which you furnished. No documents relating to James Purdy Lambert are in the custody of the Urban County Government except an investigation of an attempted kidnapping and a record of a driving under the influence arrest, copies of which you furnished.
In regard to the personnel files of the former police officers, you advised that those would be made available for inspection in two specific locations in Lexington, subject to an appointment being made. Pursuant to KRS 61.878 (1) (a) all medical records relating to the persons involved would be removed prior to inspection. No other records pertaining to these former employees are in the custody of the Urban County Government except a case summary of the arrest of Rex D. Hall and a suspected hit and run report relating to William Canan, copies of which you furnished.
As to documents pertaining to "The Company", you replied as follows:
"The file to which you refer, #80-500, was purged in 1983 or 1984 after the indictments of Bryant, Thornton, Oliver and Hillard. All documents collected in that file are currently of record in various state and federal courts. There are no other documents of which the Division of Police is custodian open for inspection. "
In her letter of appeal to this office, Ms. Denton alleges that you did not reply to her requests in a timely fashion as she did not receive your reply until 45 days after her requests. She complains of your responses denying the existence of investigative files relative to most of the persons with whom she is concerned. She also maintains that the two open investigations to which you referred are not really open cases. Melanie Flynn disappeared almost eight years ago and nothing has been done on that case for three years. The assault on Andrew Thornton occurred more than four years ago and nothing has been done on that matter for more than one year.
The undersigned Assistant Attorney General talked with you by telephone on December 9, and 10, 1986. You advised that you had conferred with the appropriate persons in the Police Department relative to the records and documents in question. Many of the documents referred to at one time had been in the Police Department's custody but were subsequently directed to prosecutors and courts in the jurisdictions where the persons had been prosecuted. They are not now in the custody of the Urban County Government.
In connection with Andrew Thornton and documents applicable to him, you advised that your letter dealt with two separate incidents. You did supply what documents exist relative to the 1982 assault but you did not supply documents pertaining to a separate and recent ongoing investigation concerning other matters involving Thornton.
OPINION OF THE ATTORNEY GENERAL
Ms. Denton alleges in part that you did not respond to her requests in a timely manner as your response was forwarded to her some 45 days after her requests were made.
KRS 61.880(1) requires in part that a public agency respond in writing to a request to inspect within three working days of the receipt of the request. While you may have missed the three day requirement by a few days and while you should make every effort to abide by that provision, from the evidence available to this office there is no indication that a 45 day gap exists from receipt of the request to the mailing of the response. By Ms. Denton's own admission her letters of request were dated October 30, 1986, and the copy of your response to her, which was furnished to this office, is dated November 14, 1986.
Ms. Denton has complained that your response to her was basically a "non response" since you denied the existence of the investigative files pertaining to most of the persons with whom she is concerned. She apparently doubts the sincerity of your statements.
After reading your response to Ms. Denton and considering what you said in the telephone conversations of December 9 and 10, 1986, with the undersigned, the following conclusions are made. First, you did not say that the documents do not exist, only that the Urban County Government does not have them in its possession at this time. Second, while you should have advised Ms. Denton who has the specific records in question at this time, if such facts are known to you [KRS 61.872(3)], you obviously cannot make available for public inspection that which you or the Urban County Government do not have. If the records requested do not exist or are not now in the possession of the public agency the request is moot. See OAG 83-111, copy enclosed. Third, on the basis of the evidence made available to the undersigned, there is no reason to doubt the sincerity of the statements in your letter relative to the nonavailability of much of the material requested of the Urban County Government at this time.
As to the personnel files of the former police officers, you stated that the Urban County Government would make them available for public inspection if Ms. Denton would make an appointment with the appropriate persons. You also stated that all medical records pertaining to the former police officers would be removed from the files prior to the inspection.
A personnel file in most situations will contain some information subject to public inspection and some material which may be excluded from public inspection. KRS 61.878(1) (a) provides that among the documents which may be excluded from public inspection in the absence of a court order authorizing inspection are, "Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." It is the opinion of this office that a public employee's medical records may be excluded from public inspection pursuant to KRS 61.878(1) (a). In connection with the public inspection of personnel folders, generally, see OAG 85-88, a copy of which is enclosed.
Pursuant to KRS 61.874(1) of the Kentucky Open Records Act a person upon inspection of the document has the right to obtain a copy of that document. The right to a copy is thus ancillary to the right of inspection and a public agency is not required to send copies of records by mail to a person who has not first inspected those records. While this office has said that a public agency should accommodate mail requests when possible, particularly when only a few precisely described documents are requested, a public agency is not legally required to honor mail requests for copies of documents when numerous records and documents are involved. See OAG 86-24, copy enclosed. Thus, you acted within the provisions of the Open Records Act when you afforded the requesting party (or her representative) the opportunity to inspect the documents in question at an office of the Urban County Government and declined to send copies of the documents prior to inspection, particularly if numerous records and documents are involved.
In connection with the documents pertaining to Andrew Thornton it is the opinion of this office that your letter dealt with two separate incidents. You supplied copies of what documents the Urban County Government possesses relative to the 1982 asasult. You declined at this time to supply documents pertaining to a separate and recent ongoing investigation concerning other matters involving Thornton. That action on your part is supported by KRS 61.878(1) (f), an exception to public inspection, authorizing the withholding of documents until the investigation has been completed and legal action relative to that matter has been completed or a decision has been made to take no legal action. See OAG 86-77 and OAG 83-481, copies enclosed, dealing with KRS 61.878(1) (f) and KRS 17.150(2).
The last matter to be discussed in this opinion concerns the missing person's file pertaining to Melanie Flynn, access to which you declined to provide, on the basis that the file involves an active ongoing investigation. In support of your decision you cited KRS 61.878(1) (f) and KRS 17.150. Apparently the Police Department has maintained an open file on this particular investigation for almost eight years.
In OAG 83-123, copy enclosed, this office dealt with public access to active, inactive and closed police investigative files. We said in part that, generally, it is within the discretion of the police to decide whether a case is active, inactive or finally closed. We could not say how long the police could consider a case inactive before finally declaring it closed. We did cite KRS 17.150(3), however, which provides in part that when a demand for inspection of records is refused the burden is on the police to justify the refusal of the inspection with specificity. See also KRS 61.880(2) providing in part that the burden of proof in sustaining the action to not permit public inspection shall rest with the public agency.
Since the missing person's file in question has apparently been maintained as an open case (active or inactive as opposed to closed) for almost eight years, the public agency's mere reference to KRS 61.878(1) (f) and KRS 17.150, with no additional explanation, does not meet the burden of proof imposed by law relative to a denial of inspection. The public agency can no longer rely upon the statutory provisions cited. It should either make the material available for inspection or it should set forth some other statutorily recognized exception to public inspection if it maintains that the file in question should not be made available for public inspection.
As required by statute, a copy of this opinion is being sent to the requesting party, Ms. Sally Denton. Either the requesting party or the public agency or both has the right to challenge the conclusions expressed in this opinion in the appropriate circuit court pursuant to KRS 61.880(5).