Request By:
Sargeant Robert T. Wentworth
Records and Identification Bureau
Paducah Police Department
Post Office Box 226
300 South Fifth Street
Paducah, Kentucky 42002-2267
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
You have requested that this Office render an opinion on public access to records maintained by the Paducah Police Department. This Office has, on numerous occasions in the past, addressed the question you raise. Although it appears that you are primarily concerned with police arrest records, we will attempt to eliminate any confusion you may have with respect to other records maintained by the Department.
Shortly after enactment of the Open Records Law, we recognized that all records of a police department are subject to public inspection unless they are specifically exempted by statute. OAG 76-478. There we observed:
Police departments do not have the authority to act privately, confidentially or secretly unless expressly authorized in particular kinds of cases.
OAG 76-478, at p. 2. We later confirmed this position, noting that "[t]he sovereign is a party to police actions and therefore the public has a right to inspect the records of . . . [its] actions." OAG 76-511, at p. 4.
The relevant statutory exceptions with which we are concerned, insofar as they impact on police records, are codified at KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(j), and KRS 61.878(1)(f). KRS 17.150(2) provides:
Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection providing prosecution is completed or a determination not to prosecute has been made. However, portions of such records may be withheld from inspection if such inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in such records to be used in a prospective law enforcement action.
KRS 61.878(1)(f) excludes from the application of the Open Records Act:
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.
Local law enforcement agencies are required to make available for public inspection any records they maintain subject to the exceptions contained in these provisions.
With respect to discreet categories of records, we have generally recognized that although centralized criminal history records maintained by the Kentucky State Police, pursuant to KRS 17.150(4), are not subject to public inspection, records maintained by local law enforcement agencies, which form the basis of State Police's centralized criminal history records, are subject to public inspection, with the exceptions noted above. OAG 79-582; OAG 81-379; OAG 82-388; OAG 88-63; OAG 91-12. KRS 17.150(4) provides:
Centralized history records mean information on individuals collected and compiled by the justice cabinet from criminal justice agencies and maintained in a central location consisting of identifiable descriptions and notations of arrests, detentions, indictments, information, or other formal criminal charges and any disposition arising therefrom, including sentencing, correctional supervision and release. Such information is restricted to that recorded as the result of the initiation of criminal proceedings or any proceeding related thereto. Nothing in this subsection shall apply to documents maintained by criminal justice agencies which are the source of information collected by the justice cabinet. Criminal justice agencies shall retain such documents and no official thereof shall willfully conceal or destroy any record with intent to violate the provisions of this section.
Hence, information which is contained in the centralized records maintained by the State Police, but not available from that source, may be obtained from a local police department. OAG 88-63.
These general rules have been interpreted on a number of occasions. In OAG 76-424, OAG 76-511, OAG 82-388, OAG 88-63, and OAG 91-12, we held that a request for the arrest records pertaining to an individual or individuals, and in the possession of a local law enforcement agency, must be honored under the Open Records Act. We have consistently held that a person does not have a privacy interest in local police records pertaining to him. Thus, in OAG 76-511, at p. 4, we observed:
What a person does in his own home or on his own piece of property, whether it be large or small, is mainly his private affair but when he enters on the public ways, breaks a law, or inflicts a tort on his fellow man he forfeits his privacy to a certain extent.
Unless the law enforcement action, out of which those records are generated, has not been concluded, or another of the exceptions codified in KRS 17.150(2) or KRS 61.878(1)(f) applies to the records, the local police department must make them available for public inspection.
This Office has taken the same position with respect to uniform citations. In OAG 88-64, at p. 7, we held that "citations are in fact 'public records' and subject to the Act." Continuing, we opined:
Likewise, however, they are also subject to exceptions and limitations, where relevant, as provided in the Act, and in KRS 17.150.
OAG 88-64, at p. 7. Accordingly, we held that as a general rule specific requests for certain citations or groups of citations must be honored, but a request to inspect all citations on a daily basis need not be honored since such a request places an unreasonable burden on the department. KRS 61.872(5). In a similar vein, the Attorney General's Office has held that accident reports are public records which must be made available for inspection. OAG 76-478; OAG 80-210; OAG 89-76; OAG 91-50. It should be noted, however, that a citation or accident report may contain confidential information, such as the names of informants, a peace officer's comments or suggestions concerning prosecution, or the identity of juveniles, and that such information should be redacted pursuant to KRS 61.878(4).
Local law enforcement agencies are also required to make available for public inspection the daily log of arrests, complaints received from citizens, and other incidences occurring in its daily operation. Hence, in OAG 77-102, OAG 79-387, OAG 79-582, OAG 80-144, OAG 81-379, and OAG 91-12, we held that the "police blotter" or "incident report" is not exempt from public inspection. As we noted in OAG 81-379, at p. 2:
A police department works for the public, is accountable to the public, and its records are subject to public inspection. It cannot avoid its accountability by failing to keep records.
This reasoning has been extended to include jail records, OAG 81-395, and photographs of persons arrested or incarcerated, OAG 83-212. In OAG 81-395, at p. 1, we held:
It is contrary to the principles of personal liberty recognized in this nation for persons to be held secretly in jail. The fact that knowledge of their incarceration may be embarrassing to them or to members of their family is of secondary importance.
Therefore, records disclosing the names of persons arrested or incarcerated, and photographs taken at the time of the booking, are open to public inspection.
Local law enforcement agencies should bear in mind the principles which inform the Open Records Act, best stated in the Preamble to the Act:
The government is the servant of the people and not the master of them and access to information concerning the conduct of the people's business is a fundamental and necessary right of every citizen in the Commonwealth of Kentucky.
These principles should guide you in determining whether the public must be afforded access to any records in your possession.