Request By:
Ms. Diane H. Smith
Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: FREDERIC J. COWAN, ATTORNEY GENERAL; Gerard R. Gerhard, Assistant Attorney General
By letter of October 31, 1989, James R. Robinson of The Daily Independent at Ashland, Kentucky, has appealed your October 24, 1989 denial (KSP Log No. 89-459) of his October 20, 1989 request for copies of various documents held by the Kentucky State Police.
KRS 61.880(2) provides, in part, for the Attorney General to, upon request of one denied inspection of public records, issue a written opinion stating whether an agency " . . . acted consistent with provisions of KRS 61.870 to 61.884."
FINDINGS IN BRIEF
The Kentucky State Police acted consistent with Open Records provisions in making a prompt written response to a request to inspect certain of its records, and, in denying inspection of portions of files or certain records that contained preliminary recommendations and opinions, citing specific statutory exceptions upon which denial of inspection could be properly based, and providing a brief explanation of the applicability of exceptions cited to records withheld. The agency also promptly forwarded a copy of its response to the Attorney General. Records that have not been inspected need not be furnished by "fax" transmission.
FACTUAL BACKGROUND
By letter of October 20, 1989, James R. Robinson of The Ashland Independent wrote you requesting:
. . . [C]opies of all documents relating to a Kentucky State Police internal investigation of a shooting that occurred on or about June 1, 1983, in which a special response team from the KSP killed a Billy Joe Isaac, 23, during a confrontation in Busseyville in Lawrence County.
. . . [C]opies of any documents relating to internal investigations by the Kentucky State Police involving retired KSP detective Clyde C. Johns.
. . . [C]opies of documents relating to a first degree perjury charge filed against Mr. Johns on June 12, 1981, in Lawrence County Circuit Court, case number 81-M-356. I would also like copies of documents showing the outcome of the case.
Mr. Robinson indicated the information was sought for a story about the race for Lawrence County Judge-Executive, for which Mr. Johns was a candidate. Mr. Robinson asked that the information be returned by "fax. "
By letter of October 24, 1989 (KSP Log No. 89-459), you indicated, in substance, that: (1) the internal investigation report was an internal administrative report containing preliminary intra-office memoranda and opinions, etc., inspection of which was denied pursuant to KRS 61.878(1)(f)(g)(h); (2) that the general request for documents concerning internal investigations regarding Mr. Johns, contained some items inspection of which was denied on the basis set forth regarding item 1, but that other records could be inspected at State Police Headquarters in Frankfort during normal business hours. Citing OAG 78-728, you explained that the right to copies of records was ancillary to the right of inspection, and thus the public agency was not required to forward copies by mail.
Regarding Mr. Robinson's request for information concerning Lawrence Circuit Court Case No. 81-M-356, you indicated, again in substance, that no records in such regard were found. You suggested Mr. Robinson seek such records through the Circuit Court.
A copy of your response was promptly forwarded to the Attorney General.
Mr. Robinson's appeal followed.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
In the instant case, you promptly responded in writing to the requester, and cited specific statutory exceptions as a basis for denying inspection of some records. Upon review, we believe the agency cited proper bases (KRS 61.878(1)(f)(g)(h) for its denial(s). You noted, in substance, that some items were preliminary, containing opinions and recommendations. Denial of such records may be properly founded upon KRS 61.878(1)(g) and (h), which you cited. See for example, OAG 89-31, at page 3). You provided a brief explanation of how the exceptions applied to the type of records inspection of which was denied. You indicated, in substance, that the "final disposition" would be made available for inspection, but not be forwarded, since it had not been inspected. You explained that the right to copies was ancillary to inspection, citing OAG 78-728. All of these responses appear consistent with the provisions of KRS 61.870 to 61.884. See OAG's 83-204 and 89-31.
Our view that copies of records need not be provided except upon inspection flows from KRS 61.874. That statute provides in part that copies may be obtained upon inspection . This provision serves to minimize disputes about which records are to be copied i.e., and to ensure that an agency copies only those records a requester wants and wants to pay for. We have said that copies of records that have not been inspected do not have to be furnished by mail, e.g. 78-728. And see OAG 83-204. The basis of our finding that copies of records that have not been inspected do not have to be furnished by mail in view of KRS 61.874, applies as well to a demand that copies of records be remitted by "fax transmission. " "Fax" transmissions may involve additional costs (e.g. telephone expense) to the public, in addition to other considerations mentioned.
Regarding records related to a particular Circuit Court case, you indicated a search did not locate such record, and indicated where such record might be located. This also is a response consistent with Open Records provisions.
We believe you acted consistent with KRS 61.870 to 61.884.
Mr. James R. Robinson may have a right pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Mr. James R. Robinson.