Request By:
Mr. Dale Davis
Rowan County Jailer
Rowan County Jail
Morehead, Kentucky 40351
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of March 24, 1989, Jim Malone, a staff writer for the Daily Independent of Ashland, Kentucky, has appealed your denial of his request dated March 17, 1989, to inspect and/or copy a number of checks, written from the "jailer's bail bond account," at either the Citizens or the Morehead National Banks during 1987 and 1988.
Mr. Malone's request itemized 23 specific checks that he wanted to inspect and perhaps copy.
Your denial was through your counsel, Grover A. Carrington, of White, Peck & Carrington of Mt. Sterling, by letter of March 22, 1989.
Mr. Carrington's letter of denial on your behalf, a copy of which was sent to the Attorney General's Office consistent with KRS 61.880(2), indicates that while you did not have an account styled "jailer's bail bond account" during the period in question, you did have an account styled "Rowan County Jail Bonds" from which the checks in question were written.
According to Mr. Carrington, your position is that the checks are not public records within the meaning of KRS 61.870(2), because the specific checks involved are "not related to the operation of the Rowan County Jail or to the funds for the operation of the Rowan County Jail." Mr. Carrington indicates further that KRS 61.878(1)(a) excludes disclosure of public records of a personal nature where the public disclosure thereof would constitute an unwarranted invasion of public privacy. A Fifth Amendment ground for denial is also alleged.
OPINION OF THE ATTORNEY GENERAL
Inspection of certain checks drawn on a bank account styled "Rowan County Jail Bonds" has been denied on the ground that, (1) the checks in question are not "public records" because the specific checks sought are "not related to the operation of the Rowan County Jail" and, (2) that KRS 61.878(1)(a) "excludes disclosure of public records of a personal nature where the public disclosure thereof would constitute an unwarranted invasion of personal privacy. " The Fifth Amendment is also relied upon as a basis for refusing to permit inspection of the checks.
First, KRS 61.870(2) provides in part:
"Public record" means all . . . papers . . . or other documentary materials which are prepared, owned, used, in the possession of, or retained by a public agency. "Public Record" shall not include any records owned by a private person or corporation that are not related to functions, activities, programs or operations funded by state or local authority.
In our view, a "Jailer's Bail Bond Account" is an official trust account of a public agency, here the Rowan County Jail. Records of the account thus are "prepared, owned, used, in the possession of, or retained by a public agency" within the meaning of KRS 61.870(2). As records of a public agency bank account, the account records, including cancelled checks issued thereon, are not "records owned by a private person," but are owned by the cognizant public agency. See for example, OAG 79-575. Further, records related to an official trust account, such as one maintained for receipt of bail bonds, are clearly related to functions - operation of the the bonding program - funded by state or local authority. Certainly no claim is made that the account is the personal, privately owned, account of Dale Davis. Checks drawn on a publicly owned account do not take on a private character because they were used for a private purpose. Records of the account, including checks drawn thereon, are public records within the meaning of KRS 61.870(2).
Second, checks drawn upon a public account, and indicating disbursement of an amount of money therefrom, cannot be said to be public records "containing information of a personal nature," such that their public disclosure would constitute an "unwarranted invasion of personal privacy, " so that denial of inspection could be properly based upon KRS 61.878(1)(a). A check drawn upon a public account simply does not contain information of a personal nature. We note also that the reference in the denial to KRS 61.878(1)(a) is merely that. There is no explanation, as required by KRS 61.880(1), of how that exception applies to the checks in question.
Third, while the Fifth Amendment to the United States Constitution might be invoked by a private individual to avoid giving testimony of a self-incriminating nature, the records of public agency, though perhaps incriminating, cannot be said to be the testimony of a private individual. An individual's Fifth Amendment privilege simply cannot operate to deny inspection of records of a public agency.
The Rowan County Jail acted consistent with KRS 61.870 to 61.884 to the extent it promptly responded to a request to inspect public records, cited a statutory basis for denial, and forwarded a copy of the denial to the Attorney General's Office. The bases of denial of inspection of records sought, however, are not consistent with KRS 61.870 to 61.884, and are therefore rejected.
Checks drawn upon the Jailer's Bail Bond Account are public records. None of the exceptions set forth in KRS 61.878 operate to prohibit their inspection without a court order.
Inspection of the checks listed in Mr. Malone's request of March 17, 1989, must be allowed. Copies must be provided at reasonable cost if requested following inspection.
You may have rights pursuant to KRS 61.880(5) and 61.882 to appeal the findings of this opinion. As required by statute, a copy of this opinion is being sent to Mr. Jim Malone, who sought inspection of the records here involved.