Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; THOMAS R. EMERSON, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by James J. Corbett in connection with his request to the Otter Creek Correctional Center for a copy of his "FBI arrest record from my institutional files maintained by OCCC'S records department."
The Correctional Center cited KRS 61.878(1)(k) in support of its denial and maintained that the material requested is "regulated by Federal Law and, therefore, exempt from inspection under KRS 61.878(1)(k)." The applicable federal law was never cited nor was there a brief explanation of how that specific exception applied to the particular document withheld. There was no explanation as to how the document was acquired from the FBI or the document's status as a state or federal record.
James J. Corbett's appeal was received by the Attorney General on March 21, 1996.
During the time available to this office for the research and preparation of this decision the Office of General Counsel of the Department of Corrections was contacted. Among the materials cited in support of the position taken by the public agency is the case of United States Department of Justice v. Reporters Committee, 489 U.S. 749, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989).
The Louisville Office of the Federal Bureau of Investigation was contacted by telephone and on April 15, 1996 this office talked with Special Agent Dave Beyer who acts as legal counsel for that office. Mr. Beyer referred to 28 CFR § 16.32 setting forth the procedure whereby the subject of an identification record may obtain a copy of that record by submitting a written request via the U.S. Mails directly to the FBI, Identification Division, Washington, D.C. 20537-9700. Such request must be accompanied by satisfactory proof of identity and a set of rolled-ink fingerprint impressions placed upon fingerprint cards or forms commonly utilized by law enforcement agencies. Section 16.33 of 28 CFR requires that each request for an identification record be accompanied by a fee of $ 18.00 in the form of a certified check or money order.
KRS 61.880(1) sets forth the duties and responsibilities of a public agency in responding to a request for access to documents made under the Open Records Act. That statute 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.
This office has stated on numerous occasions that the procedural requirements of the Open Records Act are not mere formalities but are an essential part of the prompt and orderly processing of a request to inspect public documents. Any public agency has the burden of justifying the withholding of a record by reference to the appropriate exception and by briefly explaining how that exception applies to the particular document withheld.
KRS 61.878(1)(k), relied upon by the public agency, authorizes the withholding of a public record by the public agency when the disclosure of that record is prohibited by federal law or regulation. While the public agency cited the general statutory exception, it failed to cite a federal statute or regulation specifically authorizing withholding the document in question and it failed to explain how that exception applied to the record withheld. See, for example, 95-ORD-162, copy enclosed.
The case of United States Department of Justice v. Reporters Committee, 489 U.S. 749, 103 L. Ed. 2d 774, 109 S. Ct. 1468 (1989), held that the contents of an FBI rap sheet could not be disclosed to a third party because of privacy considerations. While not the holding of the case, the Supreme Court referred to the FBI's policy of generally considering rap sheets as confidential and the FBI's decision to make two exceptions to its general policy. One of those exceptions is that the subject of a rap sheet may obtain a copy of that document.
Even if the public agency (the correctional institution) wanted to or could have invoked the provisions of KRS 17.150 note the requirements of subsection (3) of that statute to the effect that when a demand for the inspection of records is refused, the custodian of public records of the public agency has the burden of justifying the refusal of inspection "with specificity."
It is, therefore, the decision of the Attorney General that the public agency failed to respond to the request for access to documents as required by KRS 61.880(1). While the public agency alleged that a federal statute made the requested documents exempt, the public agency failed to state what specific federal provision was applicable and how it applied to the record withheld. The public agency's response is both procedurally and substantively deficient, the document requested was, therefore, improperly withheld, and this office has no choice under the specific facts and circumstances pertaining to this particular appeal to order that the requested document be made available to the requesting party. In connection with future requests of the type involved here the public agency may wish to examine the provisions of the CFR cited here and to discuss the situation with the FBI.
A party aggrieved by this decision may appeal it 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 shall be notified of any action filed in circuit court, but the Attorney General shall not be named as a party in that action or in any subsequent proceeding.