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; Amye B. Majors, Assistant Attorney General
Mr. Joe Gossett, Jr., has appealed to the Attorney General pursuant to KRS 61.880, your denial of his October 10, 1991, request to inspect the personnel file of Mr. James Stephens, a former employee of the Kentucky State Police. Mr. Gossett expresses particular interest in reviewing any records generated in the course of an internal affairs investigation.
You denied Mr. Gossett's request in a latter dated October 14, 1991. Relying on KRS 61.878(1)(a) and OAG 83-329, you explained that the records contained in Mr. Stephens' personnel file are exempt from disclosure because they contain information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. In addition, you indicated that Mr. Stephens was never the subject of an internal affairs investigation, and that therefore no documents exist which would satisfy the second portion of his request.
In his letter of appeal to this Office, Mr. Gossett argues that our opinion in OAG 83-329 suggests that an agency can withhold the records contained in a personnel file only if it has adopted an express policy "keeping such records confidential." Since you did not advise him that the Kentucky State Police have adopted a policy of nondisclosure, he maintains that the records should be released. He explains that his request was made "for the specific purpose of obtaining job related information concerning Mr. Stephens' abilities and credibility as an arson investigator. "
Mr. Gossett asks that this Office review your denial of his request to determine if the Kentucky State Police acted consistently with the Open Records Act. For the reasons set forth below, we conclude that you properly denied Mr. Gossett's request.
OPINION OF THE ATTORNEY GENERAL
This Office, and the courts of the Commonwealth, have consistently held that because much of the information contained in personnel files is personal in nature, and the disclosure of such information serves no public interest, individuals seeking to inspect personnel files under the Open Records Law must specifically identify the records sought. Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky.App., 625 S.W.2d 109, 111 (1981); OAG 85-88; OAG 91-62. In OAG 85-88, p. 2, we upheld the Kentucky State Penitentiary's denial of a request to inspect an entire inmate file, noting that "[a]n inmate's institutional file in all probability contains some information which may be inspected by the inmate or the public and some information which is exempt from public inspection. " Moreover, we observed:
In his request to inspect, [the requester] never referred to any specific documents. He merely referred to his complete institutional central file. In OAG 76-375, . . ., we said in part that if a person cannot describe the records he seeks to inspect with specificity, there is no requirement that copies of the records be delivered to him. In addition, 'Blanket requests for information on a particular subject without specifying certain documents need not be honored.' OAG 85-88, p. 2. Clearly caselaw and prior OAGs require that the requesting party reasonably identify the records contained in a personnel file which he wishes to inspect to enable the custodian of the file to determine if the records are exempt under KRS 61.878(1)(a), the privacy exemption to the Open Records Law.
We are not persuaded by Mr. Gossett's argument that the failure of the Kentucky State Police to state that its denial is based on an express policy of nondisclosure somehow invalidates its action. OAG 83-329 does not requrie that an agency recite that it has adopted a policy of nondisclosure with respect to personnel files. It merely states that since the exemptions codified at KRS 61.878(1) are permissive, rather than mandatory, an agency may release records which are otherwise exempt. An agency may, just as properly, invoke the exemptions to authorize nondisclosure. In either case, the agency must treat every requester alike. As long as an agency acts consistently in responding to requests for like documents, it need not state that its actions are based on an express policy.
Mr. Gossett emphasizes that his request "was made for the specific purpose of obtaining job related information concerning Mr. Stephens' abilities and credibility as an arson investigator. " This Office has consistently recognized that the purpose for which a person seeks access to a public records is not relevant. OAG 78-231; OAG 79-275; OAG 81-345; OAG 82-394; OAG 84-93; OAG 85-120; OAG 86-36; OAG 89-79; OAG 91-129. This principle is a double edged sword. It prohibits an agency from allowing inspection and copying of records for certain purposes and denying inspection and copying for other purposes. "It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement." OAG 82-394, at p. 3. However laudable, or unlaudable, the purpose of the requester, the agency must treat each request with an even hand.
With respect to Mr. Gossett's request for any records generated in the course of an internal affairs investigation, you advised that no such investigation was conducted, and that therefore, no such documents exist. This Office has recognized that a public agency cannot furnish access to documents which it does not have. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112. A request for such documents is moot. OAG 88-44. We have also recognized that it is not our duty to investigate in order to locate documents which the requesting party maintains exists, but which the public agency states do not exist. OAG 86-35. As we observed in OAG 86-35, at p. 5, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents or possible documents for the party seeking to inspect such documents." We believe OAG 86-35 is dispositive of that portion of Mr. Gossett's appeal pertaining to internal affairs investigations.
As required by statute, a copy of this opinion will be sent to the requester, Mr. Joe Gossett. Mr. Gossett may challenge the opinion in the appropriate circuit court pursuant to KRS 61.880(5).