Request By:
Christopher W. Johnson, Esq.
Legal Office
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Ralph D. Gibson, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to furnish him with various information as well as the opportunity to inspect and copy certain records and documents in the custody of the Kentucky State Police.
In a letter to the Central Laboratory of the Kentucky State Police, dated November 16, 1987, Mr. Gibson stated that in the course of an investigation concerning a case in which he is involved, it was learned that a blood sample was submitted to that laboratory. He wanted additional information about the blood sample analysis and he wanted "to know and/or receive" the following information or records:
The specific alcohol method used by your laboratory on the date this sample was analyzed, including the type and manufacturer of the equipment used, (and if possible to receive any documentation you may have as to the proper procedures utilized with this method);
A copy of all the actual data relating to this BAC analysis of Mr. Adkins, including all controls and standards used for calibration of your procedure; and
The training, education and experience of Mr. Lawson, the analyst who performed the actual testing, and whether or not he is still employed by the State Police Laboratory.
Mr. Gibson's letter was subsequently directed to you for a response and you replied to him in a letter dated November 24, 1987. You noted that he was in possession of a State Police Toxicology Analysis Report made in connection with a fatal accident occurring on July 1, 1985, and that he now wanted information concerning the methodology used to perform the analysis. You advised Mr. Gibson as follows:
The Open Records Act provides that all public records are to be open to public inspection absent a specific exemption enumerated in the Act. However, the Act does not compel a public agency to respond to requests for information. OAG 76-375. Accordingly, we must deny your requests for "information" concerning this analysis. Similarly, your request for information concerning our employee, Carl E. Lawson, Jr., is denied pursuant to KRS 61.878(1)(a) and in reliance on OAG 85-88. The request for all "data" relating to the analysis is denied pursuant to KRS 61.878(1)(g).
The undersigned Assistant Attorney General contacted you by telephone on December 11, 1987, concerning this particular request for information and documents and you reiterated the positions taken in your letter of November 24, 1987.
OPINION OF THE ATTORNEY GENERAL
This office on several occasions has attempted to set forth the difference between a request for information and a request to inspect and copy records and documents under the Kentucky Open Records Law (KRS 61.870 to KRS 61.884). The Open Records Law provides in part in KRS 61.872(1) that, "all public records shall be open for inspection by any person" unless those records and documents may be excluded from public inspection under one of the statutorily authorized exceptions to public inspection.
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information. See OAG 86-51 and OAG 81-333, copies of which are enclosed.
In addition, in OAG 85-88, copy enclosed, it was stated that if a person cannot describe the document he seeks to inspect with some degree of specificity, there is no requirement that the document be made available. "Blanket requests for information on a particular subject without specifying certain documents need not be honored."
This office, in OAG 84-118, copy enclosed, at page three, dealt with a request for material, made to the Kentucky State Police, concerning all correspondence and memoranda between manufacturers of breath alcohol testing equipment and the State Police or its agents and employees regarding the operation, testing or maintenance of such equipment used in Kentucky. We concluded that such material could be excluded from public inspection pursuant to KRS 61.878(1)(g). That section provides that records consisting of "preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency" may be excluded from public inspection in the absence of a court order authorizing inspection. See also KRS 61.878(1)(h), which authorizes an exemption from public inspection for records consisting of "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
While this office has concluded that the public is entitled to know the name, position, work station and salary of a governmental employee, we have also stated that a governmental employee is entitled to privacy as far as his personal life and off duty activities are concerned. In OAG 87-77, copy enclosed, we dealt with the right of privacy and the permissible exclusion from public inspection of "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy, " KRS 61.878(1)(a).
At page three of OAG 87-77 we said that resumes of governmental employees could be excluded from public inspection pursuant to KRS 61.878(1)(a). They are personnel records and, as such, contain personal information, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. There was nothing in that situation nor is there anything in the situation presented by Mr. Gibson's appeal that demonstrates that the public's interest in gaining access to information about the state employee's training, education and experience is greater than the employee's right to personal privacy about such matters. See OAG 76-717, copy enclosed, relative to matters pertaining to state employees which are subject to public inspection and copying.
It is, therefore, the opinion of the Attorney General that your refusal to respond to a request for information, as opposed to a request to inspect and copy a specifically described document, is not a violation of the Open Records Act. The public agency's refusal to furnish documents concerning preliminary data pertaining to a toxicology analysis report is supported by exceptions to public inspection dealing with preliminary drafts, notes, correspondence, recommendations and memoranda in which opinions are expressed. Refusal to furnish records pertaining to an employee's training, education and experience is supported by the exception to public inspection protecting against an unwarranted invasion of personal privacy.
As required by statute a copy of this opinion is being sent to the requesting party, Ralph D. Gibson, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).