Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Elizabethtown Police Department's actions in its handling of James England's open records request were consistent with the Open Records Act. On October 28, 1998, Mr. England made a request for the following:
A copy of every record, document, statement, recording, report, warrant, citation, memo, letter, photo, note, and other record of every type and description made or maintained by the Elizabethtown Police Department or officer thereof which names or otherwise refers to me in any manner involving any investigation upon which I have been prosecuted and upon which prosecution is not contemplated, to particularly include the investigation of allegations that involved any activity I had with Jennifer Carroll and/or Heather Carroll, but not necessarily limited thereto.
Having received no response from the Department, Mr. England initiated this appeal on November 18, 1998. After receipt of Mr. England's appeal, the Attorney General issued written notification to the Department that an open records appeal had been filed in this matter. The notification advised that pursuant to 40 KAR 1:030 Section 2, the Department could respond to the appeal, but that its response must be received no later than Monday, November 16, 1998. The Attorney General received no response to the appeal, written or otherwise.
With the deadline for issuance of a decision in the appeal approaching, this office contacted Deborah L. Shaw, legal counsel for the Department to ascertain the status of Mr. England's request. Ms. Shaw indicated that Mr. England's request had been received and the requested records likely would be made available to Mr. England.
By letter dated December 15, 1998, Ms. Shaw advised this office that the Department had provided Mr. England with all the records it had remaining in its police file and enclosed copies of the records provided him. She further advised that the only information withheld was the date of birth and addresses of juvenile witnesses who were subpoened but did not testify. She explained that because they were juveniles at the time this action went to court and because they were not witnesses that the Department believed it could protect their whereabouts.
For the reasons that follow, we conclude the Department's actions in responding to Mr. England's request, although procedurally deficient, was substantively in substantial compliance with the Open Records Act.
The Department violated the procedural requirements of KRS 61.880(1) in its handling of Mr. England's request. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing KRS 61.880(1), the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Edmondson v. Alig., Ky.App., 926 S.W.2d 856, 858 (1996). It also requires a timely, written response directed to the person making the request. The failure to provide Mr. England with a written response within three business days after receipt of his request was a procedural violation of the Act. We urge the Department to review the cited provision to insure that future responses conform to the Open Records Act.
The Department's subsequent action of providing Mr. England with all the records remaining in the Department's file was in substantial compliance with the Act. However, it too was procedurally deficient in failing to cite the specific exception authorizing the withholding of the information or records withheld. As noted above, KRS 61.880(1) directs if an agency response denies, in whole or in part, inspection of any record requested, its response should "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. "
Moreover, the Open Records Act authorizes the masking or redacting of excepted material from a public record and providing the requester with the remaining portion of the record. KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
Although the Department provided a brief explanation as to why it withheld information which disclosed the date of birth and addresses of juvenile witnesses who were subpoenaed but did not testify, it failed to set forth the specific exception upon which it relied in withholding the information. Prior decisions of this office have held that a public agency may mask or redact information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, such as home addresses, social security numbers, and dates of birth, under authority of KRS 61.787(1)(a). 96-ORD-51.
Accordingly, we conclude the Department's subsequent action of providing all the records remaining in the Department's file, with the exception of failing to set forth the specific exception upon which it relied in withholding certain information, was in substantial compliance with the Open Records Act.
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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.