Request By:
Captain Dave Whalin
Commander, Legal Affairs
Jefferson County Police Department
600 West Jefferson Street
Louisville, Kentucky 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
On behalf of reporters for her client-newspaper, The Courier Journal , Kimberly K. Greene, Esq., has apparently appealed to the Attorney General, pursuant to KRS 61.880, your denial of the requests of reporters Mary O'Doherty and Stan Macdonald to inspect various documents in the custody of the Jefferson County Police Department. We are not construing Ms. Greene's letter to the Attorney General, dated December 19, 1990, as an appeal from the letter directed to the two reporters from Paul V. Guagliardo, Assistant Director of Law, City of Louisville, dated December 14, 1990, and written on behalf of the city's police department.
Furthermore, Ms. Greene's letter to the Attorney General addressed the issue of accessibility to court records but, since they are not covered by the Open Records Act, this letter is not considering that matter. This office's position relative to Ms. Greene's dissatisfaction with the inability of reporters for her client-newspaper to gain access to court records is being communicated to her in a separate letter.
In a letter to the Jefferson County Police Chief, dated December 11, 1990, the two reporters made the following requests:
A record of all persons arrested by the JCPD on charges involving domestic violence from Jan. 1, 1988, through Dec. 10, 1990, including their name, date of birth, race, sex, home address, date of arrest, charges placed against them, the case's court citation number and the name and age of victim(s). We would like to obtain this arrest data in chronological order, according to the arrest dates.
A record of all incident reports taken by the JCPD involving alleged domestic violence from Jan. 1, 1988, through Dec. 10, 1990, including the name of the victim, their date of birth, race, sex, address, telephone number, and the name of the alleged offender and/or the name and age of the person arrested. We would like to obtain this data in chronological order.
A record of all arrests from Jan. 1, 1988, through Dec. 10, 1990, where there was only a single charge placed against the person arrested -- that charge being 4th degree assault. We request that these cases be separated into two categories: 4th degree assaults which have been labeled as involving domestic violence and 4th degree assaults not involving domestic violence. We request the name of the arrested person, their date of birth, race, sex, home address, date of arrest, the charge placed against them, the case's court citation number, and the name and age of victim(s).
A record of all arrests on 4th degree assault -- excluding those identified as domestic violence cases -- where the alleged assailant and victim are of the opposite sex for the period of Jan. 1, 1988, through Dec. 10, 1990. This would exclude cases where both the assailant and victim are of the same sex. ) In these opposite-sex assault -4 cases, we request the name of the arrested person, their date of birth, sex, home address, date of arrest of the person arrested, and the name and sex of the victim, and the court citation number for each case.
We would like to obtain this information in computer-ready form -- on 3 1/2 inch diskettes or 9-track tapes, if possible. We would be more than willing to sit down with you and/or your representatives and try to resolve any questions and problems.
You responded to the reporters' requests in a letter dated December 17, 1990. You referred to various sections of KRS 403.715 to KRS 403.785 relative to "Domestic Violence and Abuse" and other statutory sections dealing with confidentiality of documents.
To satisfy statutory reporting requirements, you said that the actual offense reports prepared by your department are forwarded to the Cabinet for Human Resources. Thus, all information pertaining to the offense reports is not subject to public disclosure and is subject to the confidentiality requirements of the various state statutes.
Since the information requested in the arrest reports is the same information contained in the confidential offense reports, you declined to make available arrest records concerning domestic violence situations.
As to arrest record information pertaining to non-domestic violence offenses, you advised that such information is not available in the form requested. Furthermore, you hesitate to give such detailed information when the disposition of the charges cannot be ascertained from your records. In regard to non-domestic violence arrests, you are willing to provide the reporters with the uniform citation number, charge, and date of offense for each report.
In her letter to this office, dated December 19, 1990, Ms. Greene maintains that your department should be required to immediately produce all the requested records. Arrest records not related to domestic violence cannot be withheld pursuant to KRS 61.878(1)(a), the privacy exception to public inspection. Arrest records concerning domestic violence cases are also public records and none of the confidentiality provisions you cited are applicable. Finally, incident reports should be made available as they too are outside the privacy and confidentiality exceptions to public inspection.
OPINION OF THE ATTORNEY GENERAL
As far as the availability of incident reports and arrest records is concerned, this office has consistently concluded that they are public records and subject to public inspection under the Kentucky Open Records Act (KRS 61.870 to KRS 61.884).
Local law enforcement agencies are required to make available for public inspection the arrest records of all persons. See OAG 82-388, copy enclosed. Police departments are required to maintain daily logs of arrests made by police officers and to make them available for public inspection. See OAG 81-379, copy enclosed.
Generally, the "police blotter" or police "incident reports" are not exempt from public inspection. See OAG 77-102, OAG 79-387 and OAG 80-144, copies enclosed.
Under the Domestic Violence and Abuse Act (KRs 403.715 to KRS 403.785), KRS 403.770(3) states that each law enforcement agency shall maintain information as to the existence and current status of any court order issued, copies of which have been forwarded to the law enforcement agency. Pursuant to KRS 403.770(4), such records are confidential. However, there is no provision in the Domestic Violence and Abuse Act which makes arrest records and incident reports confidential.
KRS 194.060 concerns the confidentiality of records and reports of the Cabinet for Human Resources. KRS 209.140 makes material obtained by the Department for Social Services in connection with investigations involving the abuse, neglect or exploitation of adults confidential. KRS 620.050 deals with the confidentiality of information obtained by the Cabinet for Human Resources relative to investigations involving dependency, neglect or abuse situations. None of these provisions involve the arrest records and incident reports of local police departments.
Thus, while arrest records and incident reports of local police departments are not exempt from public inspection [under KRS 61.878(1)(a) or any other exception to public inspection you have cited] the reporters' requests involve other considerations. For example, you state that the actual offense reports prepared by your officers under the Domestic Violence and Abuse Act are sent to the Cabinet for Human Resources. Obviously, you can only make available those records and documents which actually exist and are in the custody of your agency.
Not only have the reporters requested a great amount of material but they are requesting that it be provided in a certain format. They want it in chronological order and on 3 1/2 inch diskettes or 9 track tapes.
The 1990 session of the General Assembly enacted legislation dealing with public access to governmental databases which has been codified as KRS 61.960 to KRS 61.975 and KRS 61.992. "Database" means records, electronically stored, that can be retrieved by a computer. Public records stored on a database which are subject to KRS 61.870 to KRS 61.884 and which are not requested for commercial purposes are available for public inspection. Since we do not know how the records in question are stored, we cannot determine whether the above provisions can be utilized in this situation.
If we are not dealing with access to a governmental database, then while the reporters are entitled to inspect the arrest records and incident reports, the public agency is not required to compile the material in a list form. Nor is it required to make available the material on diskettes or tapes if it already does not exist in that format. Basically, what the public gets is what you have and in the format in which you have it.
In OAG 90-101, copy enclosed, we said that the basic purpose of the Open Records Act is not to provide information but to provide access to public records which are not exempt from public inspection. An agency is not required to make lists from its records merely to satisfy a request under the Open Records Act. Where an agency has compiled statistics, the documents containing those statistics should be made available to the public. If no such compilation has been made, a requested party cannot require the agency to prepare such material.
It is the opinion of the Attorney General that the public agency has failed to demonstrate that the arrest records and incident reports of a local police department in domestic violence and abuse situations are exempt from public inspection. If the material is not stored on a "database, " the public agency is merely required to make the material available in the format in which it has been gathered by the agency as the requester cannot dictate the format in which material is made available.
As required by statute, a copy of this opinion is being mailed to legal counsel for the requesting parties, Kimberly K. Greene, Esq. Since this opinion reaches conclusions adverse to positions advocated by both the legal counsel for the requesting parties and the public agency, either or both of you have the right to challenge this opinion in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.