TO BE PUBLISHED
95-ORD-17
February 17, 1995
In Re: Hal Hyman, D.C./Kentucky State Police
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky State Police's denial of Dr. Hal Hyman's request to review all Kentucky State Police accident reports at the Dry Ridge Post from September 1 through September 8, 1994.
Dr. Hyman stated in his request that he would like to review the records, that it was not for a commercial purpose, and that no information would be copied.
On behalf of the Kentucky State Police, Diane H. Smith, Official Custodian of Records, denied Dr. Hyman's request. In addition, the Kentucky State Police has submitted a response to this office in support of its denial of the records request on appeal.
A brief summary of the history of the instant request is as follows:
On September 12, 1994, Ms. Smith received a request from Dr. Hyman, a chiropractor, to inspect/review state police accident reports from September 4-10, 1994, and September 11-17, 1994, at the Dry Ridge Post.
On September 15, 1994, Ms. Smith denied the request because (1) it was not sufficiently specific (i.e., place of accidents) to enable a search for the records; (2) it failed to answer the questions as to whether the request was for commercial purposes or to explain if it was for a commercial purpose; (3) in futuro nonexistent records could not be requested; and (4) whether the records were reviewed or copied, if it was for a commercial purpose, payment must be made in advance. As a postscript, Ms. Smith enclosed forms for Dr. Hyman to resubmit his request if he chose to do so.
On September 19, 1994, Dr. Hyman resubmitted his request. He requested to review all accident reports dated September 1 through September 8, 1994, at the Dry Ridge, Kentucky, State Police Station. The request form supplied him asked, "Is this request for commercial purposes?" Dr. Hyman checked no. On the "Certified Statement of Commercial Purpose" supplied him, Dr. Hyman certified that the records requested by him were "not for commercial purposes."
Based upon a telephone call received from Dr. Hyman, and due to the fact that many chiropractor requests for commercial purposes had been received by the agency in the past, Ms. Smith, in her response to this appeal, asserts she was not sure that Dr. Hyman knew what "commercial purpose" meant or the legal ramifications if the proper purpose was not stated.
As a result, on September 21, 1994, Ms. Smith sent Dr. Hyman a letter explaining "commercial purpose" as defined in KRS 61.870(4)(a); what constituted the unlawful obtaining of public records for a commercial purpose under KRS 61.8174(5); and the penalties for violation of KRS 61.874 as prescribed by KRS 61.8745. In addition, Ms. Smith advised him that since his intent in reviewing the accident reports was not for a commercial purpose, he needed to complete a "Certified Statement of Non-Commercial Purpose" form, which she enclosed. Final action on Dr. Hyman's request was withheld until the form was received by the agency.
On September 22, 1994, Ms. Smith received the "Certified Statement of Non-Commercial Purpose" from Dr. Hyman in which he certified: "As a matter of public record. I would like to review such reports at the Dry Ridge Post. It is not for Commercial Purposes. The Law states I can review records at the agency during normal working hours. No information will be copied."
On September 23, 1994, Ms. Smith issued a letter to Dr. Hyman, acknowledging receipt of his "Certified Statement of Non-Commercial Purpose" and denying his request to review the accident reports.
The denial was based upon Mr. Hyman's failure to state, in his certified statement, for what purpose he was requesting to review the accident reports. The agency cited 93-ORD-14 as support for this denial.
In addition to the above, Ms. Smith set forth the following as further basis for denial: KRS 61.878(1)(a), (b), (k), and (l) as it incorporates KRS 189.035, as well as KRS 61.872(b), and recently passed federal legislation, 19 U.S.C. §2721, et seq.
We conclude that the Kentucky State Police properly denied Dr. Hyman's request to inspect the accident reports. Such records are confidential and the disclosure of the reports or information contained therein is clearly prohibited by KRS 61.878(1)(l) and KRS 189.635(5). See 94-ORD-145 (copy enclosed).
In 1994, the General Assembly amended KRS 189.635(5) so that it now provides:
All accident reports filed with the Department of State Police in compliance with subsection (4) above shall remain confidential except that the department may disclose the identity of a person involved in an accident when his identity is not otherwise known or when he denies his presence at an accident. All other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (6) of this section. These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is party to the accident, and the insurers of any party who is the subject of the report, or to the attorneys of the parties.
(Emphasized language added by 1994 Act.)
Under KRS 189.635(5), the accident reports are confidential and exempt from public disclosure except under limited circumstances set out therein. Mr. Hyman does not claim he falls under these limited circumstances.
KRS 61.878(1)(l) provides in pertinent part:
(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction . . .
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
Because the above is dispositive of the propriety of the agency's denial, we need not address other reasons set out as a basis of denial. We do comment, however, on the State Police's denial based upon Dr. Hyman's failure to state, in the agency's "Certified Statement of Non-Commercial Purpose" form, the purpose for which he was requesting to review the accident reports. It is our opinion that neither the Open Records Law nor 93-ORD-14 requires a requester, who states that his request to inspect is for non-commercial purposes, to sign a certified statement describing the purpose for which he is inspecting the public records.
Be that as it may, we do follow our direction in 93-ORD-14, that an agency may require a generalized statement of the intended use of the public record when such is necessary to aid in the determination of appropriate fees to be assessed should the request involve use of the non-exempt records for a commercial purpose. This is particularly so in situations, such as in the instant appeal, where the agency believes there is at least the suspicion or appearance that the inspection may be for commercial purposes.
Finally, as noted in Ms. Smith's September 21, 1994, letter to Dr. Hyman mentioned above, KRS 61.8745 mandates that a person who violates subsections of KRS 61.874 shall be liable to the public agency from which the public records were obtained for damages in the amount of:
(1) Three (3) times the amount that could have been charged for the public record if the actual commercial purpose for which it was obtained or used had been stated;
(2) Costs and reasonable attorneys' fees; and
(3) Any other penalty established by law.
This statute puts a requester on fair notice that charading an inspection of public records as a request for "non-commercial purposes" when, in fact, it is for a "commercial use," shall be sanctioned.
Dr. Hyman and the Kentucky State Police may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
CHRIS GORMAN
ATTORNEY GENERAL
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
(502) 564-7600
res/1303
Enclosure
Distributed to:
Hal Hyman, D.C.
3412 Baker Street
Erlanger, KY 41018
Diane H. Smith
Custodian of the Records
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601
Lucy B. Richardson
Deputy General Counsel
Justice Cabinet
Bush Building, Second Floor
403 Wapping Street
Frankfort, KY 40601