Request By:
Mr. Jack Heck, Principal Assistant
Administrative Services
Kentucky Transportation Cabinet
Frankfort, Kentucky 40622
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; GREG HOLMES, ASSISTANT ATTORNEY GENERAL
This is in response to a request for the opinion of this Office concerning the partial denial by the Kentucky Transportation Cabinet of a request for records regarding Perry Southard. Specifically the denied request was for:
All documents in the Cabinet relating to the handling of the drivers license suspension hearing of Perry Southard. This request includes all correspondence, citations, memos, hearing officer recommendations, final orders, and copies of any tape recorded hearings.
In response to this request the Cabinet provided a copy of the tapes of the hearing, a copy of the final order signed by the Commissioner, and a copy of Mr. Southard's driving record. The Cabinet denied the remaining portion of the request, citing as grounds therefor "KRS 61.876 Sec. 4, (1), (7), and (8)."
Initially we note that the Cabinet's denial cites a nonexistent portion of the Kentucky Revised Statutes and is therefore an improper denial under KRS 61.880. This failure to comply with KRS 61.880 should be corrected with respect to future responses to requests by this public agency.
Assuming the Cabinet actually intended to refer to KRS 61.878 (1)(a), (g), and (h), an analysis of these sections becomes necessary in order properly to respond to the request for the opinion of this Office. KRS 61.878(1)(a) permits the 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.
878(1)(g) permits the exclusion from public inspection of records which are:
Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
KRS 61.878(1)(h) permits the exclusion from public inspection of records which are:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
These statutory provisions were not in fact relied upon by the Cabinet in support of its denial of the request relating to records pertaining to Mr. Southard, and in any event it appears that this matter is governed by yet another subsection of the Kentucky Open Records law ( i.e. , KRS 61.878(1)(f). KRS 61.878(1)(f) permits exclusion from public inspection of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884. [Emphasis added.]
In light of the second sentence in KRS 61.878(1)(f) which constitutes an explicit requirement by the General Assembly that such law enforcement records shall be subject to public inspection upon the completion of a law enforcement action or the decision to take no action, it is the view of this Office that KRS 61.878(1)(f) supersedes the more ambiguous language in KRS 61.878(1)(a), (g), and (h). It is therefore the opinion of this Office that the partial denial by the Cabinet of the request for all records relating to the drivers license hearing pertaining to Perry Southard was improper pursuant to KRS 61.878(1)(f). It is also noteworthy that KRS 61.878(1)(g) and (h) have not been generally interpreted as being explicitly concerned with law enforcement actions -- no doubt because of the existence of a quite explicit section on this point, namely KRS 61.878(1)(f).