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 Jefferson County Police Department properly relied on KRS 61.878(1)(h) in denying Olena L. DeLuca's request for various records relating to the radar unit used by Jefferson County Police Officer B.J. Whitely when he issued a speeding citation to Ms. DeLuca on August 3, 1999. For the reasons that follow, we conclude that JCPD's reliance on the cited exemption was misplaced.
On August 7, Ms. DeLuca requested access to:
1. The radar unit's calibration and maintenance records;
2. The officer's radar training certification;
3. The tuning forks used to calibrate the radar unit and their calibration certificates;
4. The actual radar unit used by the officer (Whitely) in the above-entitled offense;
5. The agency's FCC (Federal Communications Commission license;
6. List of models, makes, and serial numbers of all radar units being used by that agency.
On August 10, 1999, JCPD denied Ms. DeLuca's request. Relying on KRS 61.878(1)(h), JCPD legal affairs officer William Dennis Sims argued that it was "obvious from [the] request that the prosecution of this infraction is not completed, and these documents are not subject to Open Records pursuant to KRS 61.878(1)(h)." Mr. Sims acknowledged that the documentation is available to Ms. DeLuca through the Rules of Criminal Procedure governing pretrial discovery, and suggested she "follow that avenue in obtaining these documents." This appeal followed.
It is the opinion of this office that JCPD fails to articulate a legally supportable basis for denying Ms. DeLuca's request, and that the department must furnish her with all existing records that are responsive to her request. JCPD is not obligated to generate a list, if one is not already in existence, of the models, makes and serial numbers of all radar and serial numbers of all radar units being used, or to produce for inspection the actual unit used by Officer Whitely and the tuning forks used to calibrate the unit. As to the remaining records identified in Ms. DeLuca's request, we conclude that they do not qualify for exclusion under KRS 61.878(1)(h), and that the fact that the matter is before the courts does not suspend JCPD's duties under the Open Records Act.
In 97-ORD-93 the Attorney General addressed a similar question. There we were asked to determine if the London City Police Department could rely on KRS 61.878(1)(h), among other exceptions, to deny a requester access to identical records relating to a radar unit while the matter of his traffic citation was before the Laurel District Court. We concluded that the Department could not rely on the exception reasoning:
In order to successfully raise KRS 61.878(1)(h), a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
97-ORD-93, p. 6, 7, citing 95-ORD-95, p. 2, 3. Although the department satisfied the first part of this three-part test, we held that the disputed records could not be characterized as records "that were compiled in the process of detecting and investigating statutory or regulatory violations."
We relied, in part, on an earlier opinion of the Attorney General in which we stated that "records compiled in the course of detecting and investigating statutory . . . violations":
means those [records which are] actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process[, and not records made] independently of, or collaterally to the [process].
OAG 89-11, p. 5.
Here, as in 97-ORD-93, we conclude that maintenance and other records relating to the radar unit, and the officer's training to use the unit, do not satisfy the second requirement of KRS 61.878(1)(h), much less the requirement that premature disclosure of the records would harm JCPD. The Department's reliance on the cited exception was therefore, in our view, misplaced. See also, 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, Kentucky Board of Medical Licensure failed to justify denial of records request with proof of harm by premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in 911 tape would harm the city was insufficient to satisfy statutory burden of proof) ; 96-ORD-37 (Finance and Administration Cabinet failed to make requisite showing relative to invocation of KRS 61.878(1)(h) in denying access to records relating to licensees of Kentucky Board of Respiratory care); 96-ORD-56 (Kentucky Labor Cabinet failed to establish that disclosure of records in occupational safety and health investigative file would harm the agency, and therefore did not satisfy the three part test); 96-ORD-155 (Department of Insurance was not engaged in investigating statutory or regulatory violations and would not be harmed by disclosure of rate filings, and improperly relied on KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on law enforcement exception to withhold policy and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992) (University improperly relied on KRS 61.878(1)(h) in denying newspaper access to records compiled in response to NCAA investigation since it was not a law enforcement agency or an agency involved in administrative adjudication and therefore did not satisfy the first part of the three part test). The question of the propriety of agency invocation of KRS 61.878(1)(h) has thus arisen in various contexts, but the analysis remains the same. "Consistent with the principle that free and open examination of public records is in the public interest, KRS 61.878(1)(h), like each of the eleven other exceptions, must be 'strictly construed' to afford the broadest possible public access. KRS 61.871." 97-ORD-129, p. 2.
We further find that the presence of ongoing prosecution does not relieve JCPD of its duties under the Open Records Act vis-a-vis Ms. DeLuca, or provide a basis for denying access to otherwise nonexempt public records. Although the Attorney General has discouraged the use of the Open Records Act as a substitute for discovery, we are bound to follow the line of opinions issued by this office from 1982 to the present holding that the presence of litigation between the requester and the public agency does not suspend the agency's duties under the Act. On this issue, the Attorney General has observed:
In OAG 82-169, this office considered the propriety of the Jefferson County Public Schools' denial of attorney John W. Potter's open records request on the grounds that school system was involved in litigation and the records would not be discoverable under the civil rules. At page 2, we rejected the school system's argument, commenting:
Elaborating on this view, in a subsequent opinion the Attorney General observed:
OAG 89-53, p. 4. Shortly after OAG 89-53 was issued, we confirmed our position, asserting:
OAG 89-65, p. 3; see also, 95-ORD-27; 97-ORD-98.
These open records decisions were accompanied by the following cautionary language:
OAG 89-65, p. 3. Thus, although the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, he has not recognized the right of a public agency to deny access to public records on these grounds. Unless the [requested] records . . . fall within one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l), they must be disclosed.
98-ORD-39, p. 2 through 4. The reasoning of these decisions extends to the present appeal. With the exception of entries on Officer Whitely's radar training records, noted above, which implicate KRS 61.878(1)(a), the records identified in Ms. DeLuca's request must be made available for inspection. Neither KRS 61.878(1)(h), nor any other exception, authorize their nondisclosure. JCPD is not, however, required to generate a list containing the models, makes, and serial numbers of all radar units used by the department if such a list does not already exist. Nor is it required to produce for inspection JCPD equipment, namely the radar unit at issue or the tuning fork used to calibrate it, in response to an open records request.
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.