Request By:
Ms. Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Charles H. Zoellers has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect all "automobile accident reports prepared by the Kentucky State Police Department, London Post, . . . prepared for a period of four (4) weeks prior to the date of inspection. " Mr. Zoellers requested the opportunity to inspect these reports by letter dated November 17, 1989. In this letter, Mr. Zoellers quotes portions of OAG 83-53 wherein it was held by this Office that "Accident reports made by law enforcement officers are not confidential and are open records under the Open Records Law. " Mr. Zoellers further states as follows:
I anticipate making periodic inspection of these accident reports; most probably once per week. Of course, I intend to observe regular office hours as dictated by KRS 61.872(2). Furthermore, I intend to give every courtesy to the staff of this Department. I have previously met with Captain Doug Asher and have assured Captain Asher that the gathering of these records will in no way disrupt the administration of his office.
You denied this request by letter dated November 21, 1989. Your letter of denial stated in part as follows:
Your request for information and for access to unspecified records is denied. The agency relies on OAG 76-375 in which the Attorney General opined that 'blanket requests for information on a subject without specifying certain documents need not be honored.'
For your information, I am attaching a copy of a memorandum that was recently released by the Kentucky State Police Legal Office concerning this topic. It is our opinion that non-specific requests are unduly burdensome because they would require prior examination of each report to ascertain whether it contains exempt materials, i.e., preliminary witness statements, charges of a public offense against a juvenile or information of an evidentiary or investigative nature which is intended for use in a prospective law enforcement action, among other things.
Mr. Zoellers appealed this denial by letter dated November 22, 1989, and received in this Office on November 27, 1989. In his letter of appeal, Mr. Zoellers states that he is relying on OAG 89-76 in which an identical request was determined by this Office to be valid.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides in part as follows:
An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld.
Your response did not cite a specific statutory provision as a basis for denying inspection. In this respect, your response was not consistent or in compliance with KRS 61.880(1). Future responses denying inspection of public records should include reference to a specific statutory exception authorizing the withholding of the record. See KRS 61.878(1)(a)-(j) and KRS 61.872(5).
Your letter of denial characterized Mr. Zoellers' request to inspect records as a "request for information and for access to unspecified records" and therefore denied the request based upon the authority of OAG 76-375. This Office disagrees with your characterization of this open records request and concludes that the request sufficiently specified the records sought for inspection. The records sought for inspection by Mr. Zoellers are precisely described as all "automobile accident reports prepared by the Kentucky State Police Department, London Post, . . . for a period of four (4) weeks prior to the date of inspection period." There is no ambiguity in this request. This request does not constitute a blanket request for information as was the situation in OAG 76-375, but is a request to inspect specific records (automobile accident reports) during a specific and limited period of time. In OAG 76-375, it was held as follows:
Blanket requests for information on a particular subject without specifying certain documents need not be honored. State employees may not be requested to make compilations of records, but the public has the right to inspect compilations which have been made in the course of business unless the subject matter is confidential by law.
OAG 76-375. [Emphasis added.] [Copy of opinion enclosed. ]
Mr. Zoellers' open records request is distinguished from the open records request in OAG 76-375 in two important respects. First, Mr. Zoellers has not made a request for information, but requested inspection of specific documents that can be identified with reasonable certainty. Second, there has been no evidence presented or assertion made that this request will require state employees to make compilations of records. The automobile accident reports sought for inspection by Mr. Zoellers have presumably already been compiled and "the public has the right to inspect compilations which have been made in the course of business. " OAG 76-375.
Your letter of denial implicity relied upon KRS 61.872(5). This statute provides as follows:
If the application places an unreasonable burden in producing voluminous public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence .
KRS 61.872(5). [Emphasis added.]
This Office has interpreted and applied KRS 61.872(5) on numerous occasions. See OAG 89-85, 89-79, 89-76, 86-52, 86-51, 84-278, 84-93, 82-547, 81-198, and 77-151. This Office has rarely, if ever, upheld an agency denial based solely upon KRS 61.872(5). This may be attributed in part to the failure of the agency involved to provide "clear and convincing evidence" that the application placed an unreasonable burden on the agency. KRS 61.872(5). This may also be attributed to the basic policy of KRS 61.870 to 61.884 which is "that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.870 to 61.884 . . . shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." KRS 61.882(4).
This Office is of the opinion that you have not provided clear and convincing evidence that Mr. Zoellers' request places an unreasonable burden on the Kentucky State Police. The only "evidence" offered to support your denial is that it would "require prior examination of each report to ascertain whether it contains exempt materials." This Office disagrees. In addressing a similar issue this Office opined as follows:
The exemptions to the requirement for the mandatory disclosure of public records provided by KRS 61.878 are not mandatory, only permissive . . . .
The alleged necessity of separating exempt and non-exempt material is not a sufficient reason for denying access to records.
OAG 81-198, pp. 3-4. [Copy of opinion enclosed. ]
Prior examination of each automobile accident report is not required as you have asserted. It is permissive, not mandatory, and an agency may not justify its refusal to permit inspection solely on the grounds that the agency has elected to adopt a policy of separating exempt and non-exempt material from public records. See OAG 89-76. [Copy of opinion enclosed. ]
Determining when an application places an unreasonable burden upon an agency to produce voluminous public records is at best difficult. Each request for inspection of public records must be assessed based upon the facts in that particular situation. In the instant situation, this Office opines that the Kentucky State Police has failed to sustain its burden of proof by showing with clear and convincing evidence that Mr. Zoellers' request is unreasonably burdensome. However, future requests of a similar nature might be properly denied pursuant to KRS 61.872(5) if new or additional evidence can be produced which demonstrates by "clear and convincing evidence" that the request is unreasonably burdensome. However, it is stressed that this Office has previously opined that a request to inspect "10,000 cases are certainly 'voluminous, '" but not necessarily unreasonably burdensome. OAG 84-278, p. 2. [Copy of opinion enclosed. ]
Furthermore,
Repeated requests to inspect the records of a public agency alone do not, in our opinion, amount to harassment. Every request to inspect a public record causes some inconvenience to the staff of the public agency. No doubt some state, county, and local agencies have found it necessary to employ additional staff since the enactment of the Open Records Law in order to comply with the provisions of law. We believe that a public agency should only invoke the excuse of harassment in extreme and abusive circumstances. We believe it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection.
OAG 77-151, p. 3. [Copy of opinion enclosed. ]
It is the opinion of the Attorney General that the records sought for inspection by Mr. Zoellers are not exempt on the basis and evidence cited in your letter of denial and must promptly be made available for inspection. You may, of course, require a separate application for inspection of specific records each time an applicant desires to inspect public records. The Kentucky State Police may institute proceedings within thirty (30) days for injunctive or declaratory relief in the circuit court of the district where the public record is maintained.