Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter is before the Attorney General on appeal from the actions of the Martin County Sheriff's Department in response to Gary Ball's open records requests.
In his letter of appeal to this office, dated October 9, 1998, Mr. Ball, Editor of the Mountain Citizen newspaper, complains that the Martin County Sheriff ignored his newspaper's daily open records requests and refuses to give the newspaper's reporters any information relative to matters, such as investigations, car accidents, and other routine police matters. He states that the Sheriff's Department supplies other media sources, such as The Martin County Sun, a rival newspaper, with this type of information on a regular basis. He opines that a reason for this might be that two deputies in the Sheriff's Department work as reporters for The Martin County Sun. Acknowledging that while this may inure to the rival newspaper's advantage, the Mountain Citizen could live with this situation as long as they timely received the same information.
Along with his letter of appeal, Mr. Ball, submitted a copy of a daily open records request made to Martin County Sheriff Darriel Young, in which the following request was made:
The Mountain Citizen is requesting information concerning all arrests, break-ins, the current status of any investigations, mug shots, drug busts, traffic accidents (including the names of the parties involved, the year and model of vehicles involved, injuries and citations issued) and any and all actions you, or the Martin County Sheriff's Department have taken in executing your official duties.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" and a copy of Mr. Ball's letter to the Sheriff's Department. By letter dated December 18, 1998, Drewie Muncy, Martin County Attorney, responded on behalf of the Department to the issues raised in the appeal. In his response, Mr. Muncy stated:
Please be advised that I have personally conferred with Sheriff Young and he has stated that in the past he has given copies of accident reports and other documents.
In an attempt to resolve any problems or misunderstandings Sheriff Young has stated that copies of citations will be made available although the citations are on file in the office of the circuit court clerk. The sheriff likewise stated that he will continue to make available accident reports and UOR reports to the local media.
In an attempt to avoid any further misunderstanding on the documents that are required the sheriff states the documents will be made available in a folder for the use of the newspaper.
This response, on behalf of the Sheriff's Department, is signed by both Mr. Muncy and Sheriff Young.
We are asked to determine whether the actions of the Sheriff's Department were consistent with the requirements of the Open Records Act. For the reasons that follow, we conclude the actions of the agency relative to Mr. Ball's requests constituted procedural and substantive violations of the Act.
KRS 61.880(1) sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. That provision requires that a public agency, upon receipt of a request for records under the Act, respond in writing to the requesting party within three business days of receipt of the request, and indicate whether the request will be honored. If the agency denies all or part of the request, its denial must "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. " KRS 61.880(1).
We conclude the Sheriff's Department's failure to timely respond, in writing, to Mr. Ball's requests was a procedural violation of the requirements of KRS 61.880(1). Procedural requirements are not mere formalities but are an essential part of the prompt and orderly processing of an open records request. 93-ORD-125.
We do comment, regarding Mr. Ball's daily requests, that this office has held that "standing requests" for public records are not proper under the Open Records Act, and need not be honored, and a public agency may require a separate application for inspection of specific records each time an applicant desires to inspect public records. 97-ORD-18; 97-ORD-21.
Addressing substantive issues raised by Mr. Ball's appeal, we first note that KRS 61.872(1), in part, provides that all public records, with certain exceptions, shall be open for public inspection. Regarding this access to public records, we note that the press has only such right of access to public records that the general public has, no more and no less. In OAG 79-387, regarding whether police incident reports must be made available to the press, this office stated:
We would note that while incident reports should be open to public inspection, there is no requirement that a police department prepare a special report for the news media unless it sees fit to do so voluntarily. The police are not required to reveal information of an evidentiary nature on a case which is still pending.
While persons will obviously acquire information from public records, the primary purpose of the Open Records Act is not to provide "information," but to provide access to public records not exempted from inspection by law. OAG 79-547. The Act does not require public agencies or officials to provide or compile specific information to conform to the parameters of a given open records request beyond that which is made available from permitting access to the public documents. 97-ORD-46. However, even though an agency is not required to provide "information" under the Open Records Act, it is required to provide access to reasonably identified records or categories of records that may provide the information requested. 94-ORD-133.
In the instant appeal, Mr. Ball requested information "concerning all arrests, break-ins, the current status of any investigations, mug shots, drug busts, traffic accidents" and any other actions the sheriff or his department may have taken in executing his official duties. A large part of this request is for information, which possibly could implicate a variety of public records. However, in our view, portions of this request were couched in sufficiently identifiable terms to permit the records custodian to determine what records were being requested, such as incident reports and traffic accident reports, and whether the records were exempt.
This office has consistently held that records of police and sheriff departments are, in general, subject to inspection unless specifically exempted by statute. OAG 76-478; OAG 77-102; OAG 79-582; OAG 91-131; 94-ORD-133.
Two relevant exemptions, insofar as they impact on law enforcement agencies records, are KRS 17.150, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and KRS 61.878(1)(h).
KRS 61.878(1)(l) provides that "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly" are excluded from the application of the Open Records Act and shall be subject to public inspection only upon an order of a court of competent jurisdiction.
KRS 17.150(2) provides:
Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made. However, portions of the records may be withheld from inspection if the 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)(h) authorizes the nondisclosure of:
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? 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.
Recognizing that a police department may, on occasion, "feel it necessary to withhold certain items from public inspection in order to protect a police officer or an informant, " this Office has consistently held that exclusion of particular entries on a dispatch log must be "articulated in terms of the requirements of the statute." and the burden is on the custodian to justify the exclusion with specificity. OAG 77-102, at p. 2; OAG 89-20, p. 3; 93-ORD-41.
If all or part of a record is withheld from inspection, the agency is required to provide a written response, which includes 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. KRS 61.880(1). If particular entries of a record are excludable, the agency must provide a particularized justification for their exclusion, separate or mask the excepted, and make the remainder available for inspection. KRS 61.878(4).
As it relates to the requests in this appeal, this office has recognized that among the records local law enforcement agencies are generally required to make available for public inspection, subject to applicable statutory exceptions, are the daily log of arrests, complaints received from citizens, and records they maintain or are compiled incident to or occurring in the agency's daily operation which reflect how the law enforcement agency is performing its public function. OAG 91-131; OAG 77-102.
In the instant appeal, Mr. Ball's daily requests asked for access to such records as incidence reports (arrests, breaks-ins, drug busts, etc.) and accident reports. In our view, these are readily identifiable categories of records, generally recognized as open to public inspection.
As noted above, although an agency is not required to provide "information" under the Open Records Act, it is required to provide access to reasonably identified records or categories of records that may provide the information requested. 97-ORD-46.
Accordingly, we conclude that the failure of the Sheriff's Department to respond to the requests for access to these readily identifiable categories of records constituted a substantive violation of the Open Records Act.
Finally, it should be noted the Sheriff's Department has indicated a willingness to cooperate with Mr. Ball and the media in the future. The Department's response to the letter of appeal indicated that copies of accident reports and other records had been made available to the media in the past and, in an attempt to avoid any further misunderstanding, copies of citations, accident reports, UOR reports, and other such records would, in the future, be made available in a folder for the use of the media. We urge the parties to continue to work in a spirit of cooperation toward making public records equally available to all for inspection.
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.