Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Bullitt County Sheriff's Department properly denied Rob Roles's request to inspect "break in reports" maintained by that Department. For the reasons that follow, we conclude that the Sheriff's response was procedurally deficient but substantively correct to the extent that his office is not obligated to honor a standing request for reports, or prematurely release information compiled in the process of an ongoing investigation of a break-in. Nevertheless, we do not believe that the Bullitt County Sheriff's Department can adopt a policy of blanket nondisclosure of these records.
Bullitt County Sheriff Paul Parsley denied Mr. Roles's request advising him as follows:
I have talked with the county attorney, and was advised that we can not let your company inspect these reports. These reports maybe released only to the victims or the insurance companys and that is were the one dollar fee applys [sic].
Because most of these burglary reports are on going criminal investigations and may have personal information, case information, that is not for the public eye, also private or unlisted phone numbers, persons social security numbers, suspects information and etc. So in closing I am rejecting your company request for inspection of our reports [sic].
In a supplemental response addressed to this office, Bullitt County Attorney Walter A. Sholar elaborated on Sheriff Parsley's position. Mr. Sholar explained:
It is my understanding from the Sheriff Department that they have advised Mr. Rob Roles that burglary reports obtained and held by their office on unresolved burglaries are not open for public inspection or copying pursuant to KRS 61.878(h) [sic].
We take issue with Mr. Roles' assertion that the Sheriff Department was supplying any member of the general [sic] with copies of burglary reports at any rate up to and including $ 1.00 per copy. It has been and is the policy of the Bullitt County Sheriff Department that they will provide the home owner or an agent of the home-owner including the insurance adjuster or agent of the homeowner with a copy of the burglary report for $ 1.00 per copy. At no time in the past or present has it been the policy of the Bullitt County Sheriff Department to provide the general public with copies of reports of criminal activity or pending criminal investigations for any price. The present administration of the Bullitt County Sheriff Department, i.e. Sheriff Paul Parsley, requires identification of persons requesting copies of or inspection of criminal investigation reports such as burglary reports to insure that they are in fact victims or the agents of a victim. It is our understanding that since information concerns ongoing criminal activity and criminal investigations that are pending they are exempt from inspection by the general public for both commercial and noncommercial purposes.
Having reviewed these responses, we conclude that the Sheriff's position is only partially correct.
We begin by noting that Bullitt County Sheriff's Department's response was procedurally deficient. KRS 61.880(1) mandates that if inspection of the requested records is denied, the agency's official custodian of records must cite the specific exception authorizing nondisclosure of the records, and briefly explain how the exception applies to the record withheld. Because Sheriff Parsley failed to cite the exception upon which he relied in denying Mr. Roles's request, and explain its application to the records withheld, his response was procedurally deficient. We urge the Bullitt County Sheriff's Department to bear in mind, in responding to an open records request, that:
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). A "limited and perfunctory response" does not "amount[] to substantial compliance." Id.
Conversely, Mr. Roles's request was not properly framed. This office has recognized that "standing requests" for public records are not proper under the law, and need not be honored. Thus, in OAG 91-78, the Attorney General affirmed the actions of a public agency when it refused "to issue a blanket release of documents to be used by the [agency] in futuro." OAG 91-78, p. 4. We reaffirmed this position a year later when we stated that the office of Attorney General "has never recognized the validity of a standing request." OAG 92-30. See also , 95-ORD-43 (holding that a "standing request" for electronically stored records in the custody of the county clerk was procedurally deficient) ; compare , OAG 90-112, p. 3 (holding that a request for all "automobile accident reports prepared by the Kentucky State Police Department, London Post, . . . for a period of four (4) weeks prior to the date of inspection period ," specifically identified the records sought, and must be honored. This line of authorities clearly supports the view that the Open Records Act regulates access to existing records only.
We concluded our analysis in OAG 90-112 by noting that a public agency may "require a separate application for inspection of specific records each time an applicant desires to inspect public records. " OAG 90-112, p. 6. This position is firmly rooted in KRS 61.872(2), and reflects the view 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 an open records request." 94-ORD-128, p. 2; 95-ORD-43, p. 3. Accordingly, we find that pursuant to KRS 61.872(2), the Bullitt County Sheriff can require Mr. Roles to submit a new request each time he wishes to inspect the Department's records, and that the sheriff need only honor Mr. Roles's requests for existing records, i.e., records which have been "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2).
Turning to the substantive issues in this appeal, we find that the Bullitt County Sheriff cannot adopt a policy of blanket nondisclosure relative to burglary reports. The Attorney General has consistently recognized that records of law enforcement agencies are, in general, subject to public inspection unless they are specifically exempted by statute. OAG 76-478. In that opinion, we observed:
Police Departments do not have authority to act privately, confidentially or secretly unless expressly authorized in particular kinds of cases.
OAG 76-478, p. 2.
This principle has been refined over time with respect to various categories of law enforcement records. Although we have recognized that a law enforcement agency may, on occasion, "feel it necessary to withhold certain items from public inspection in order to protect [an] . . . officer or an informant, " and that it must, on these occasions, "justify the refusal of inspection with specificity, " we have generally ruled that "records of [a law enforcement agency] showing complaints received from citizens and other incidences occurring in its daily operation are open to public inspection. " OAG 77-102, at p. 2; see also OAG 82-70; OAG 89-20; OAG 89-68; 93-ORD-41. An even stronger statement of this principle is found at page 2 of OAG 80-144, where we held:
The Sheriff's Department is the servant of the people and if a citizen wants the services of the Sheriff's Department to investigate a crime, he cannot expect that the matter will be kept secret. It is our opinion that the Sheriff's Department must allow public inspection of any records pertaining to the reporting of a crime except records which might disclose information which would endanger the life of [an] . . . officer or an informant. . . .
We believe that the logic of that opinion can be extended to the question before us.
With specific reference to incident reports, the Attorney General has opined:
It is our opinion that generally the "police blotter" or police "incident report" is not exempt from public inspection. If a police department feels it necessary to withhold certain items from public inspection in order to protect a police officer or an informant, it may do so under KRS 17.150 [and KRS 61.878(1)(h)] but the burden is upon the custodian to justify the refusal of inspection with specificity.
OAG 77-102, p. 2. This is because such records:
. . . are typically seriatim notations, commonly of a summary character, of police dispatches and disposition codes, compiled collaterally to, and not integrally in the process of, detecting and investigating statutory violations, in contrast to, for example, an investigator's notes. Such logs have never been granted blanket exclusion from inspection by the public in this state. In order to be exempted from inspection pursuant to KRS 61.878(1)[(h)], particulars regarding given notations on a log would have to be articulated in terms of the requirements of the statute.
OAG 89-20, p. 3. In a later opinion, we observed:
We would point out that there is a difference between [an incident report] and investigative reports containing evidentiary matter which may be used in a prosecution.
OAG 82-70, p. 2. The latter category of records clearly qualify for exclusion under KRS 61.878(1)(h) and KRS 17.150(2) while the investigation is ongoing.
We therefore conclude that unless the Bullitt County Sheriff's Department can articulate a basis for denying Mr. Roles access to individual entries in its daily incident report in terms of the requirements of KRS 61.878(1)(h) and KRS 17.150(2), it must permit him full access to the report. If Mr. Roles requests copies of the report, the Sheriff's Department may impose a reasonable fee based on the criteria set forth in KRS 61.874(3), if he intends to use the records for noncommercial purposes, or the criteria set forth in KRS 61.874(4)(c)1. and/or 2., if he intends to use the records for a commercial purpose, e.g., solicitation for security services to burglary victims. The standard $ 1.00 per page copying charge which the Sheriff's Department currently imposes may be excessive if it is not tied into these criteria based on the requester's intended use of the records. The Department is not, however, obligated to disclose to him records which are integrally compiled in the process of detecting and investigating burglaries which have occurred in Bullitt County while the investigation is ongoing.
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.