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 Lawrence County Sheriff's Department properly relied on KRS 61.878(1)(a) and (h), misidentified as KRS 61.878(g), in denying Daily Independent reporter Tom Lewis' July, 2000, request for:
The number of cellular telephones owned, leased or rented by the Lawrence County Sheriff's Office, a list of the people who carry or use those telephones and copies of each bill received for those telephones since July 1, 1998, as well as a statement of the purpose(s) for the telephones.
For the reasons that follow, we find that the Department's reliance on the cited exceptions was misplaced.
In an undated response to Mr. Lewis' request, Sheriff Bobby J. Workman advised:
For your information any cellular telephones owned, leased, or rented by this office are used by staff of said office.
As to the request for each bill for each phone and the statement and the purpose for the telephones are [sic] exempt under KRS Chapter 61. I would refer you to KRS Chapter 61.878 subsection A and G [sic].
In a supplemental response directed to this office following commencement of The Daily Independent's appeal, Assistant Lawrence County Attorney Everett Kenneth Preston II elaborated on the sheriff's position. He stated:
As to who uses the cellular phones the Sheriffs department in its response to the Independents request did advise that the phones were used by staff or deputy's of the Lawrence County Sheriffs Department. However, it is the position of the Lawrence County Sheriffs Department that the records of the phones are exempt under KRS 61, in that the Sheriffs Department uses cellular phones on a continuous base in their duties as law enforcement officers. To be more specific, I have been advised by the Lawrence County Sheriffs Department, that because of the remoteness of certain locations in Lawrence County it is impossible to reach the dispatch office via radio. Therefore, the phones are continuously used to coordinate crime-fighting efforts. As a result of the phones being used in this manner the phone numbers of informants, victims of crime, and alleged criminal defendants are logged on the billing of the phones.
Based on the language of KRS 61.878(1)(h), "and the nature in which the phones are used," Mr. Preston reaffirmed Sheriff Workman's position that the cellular phone records are exempt.
We do not find the sheriff's arguments persuasive. This office has long recognized that records documenting the use of public equipment at public expense are generally subject to public inspection. For example, in OAG 86-21 this office held that telephone records of the Legislative Research Commission were subject to public inspection. In subsequent opinions, this holding was extended to records reflecting the names and facsimile numbers of all facsimile transmissions made for personal, and not agency purposes on agency equipment (96-ORD-238), a tape recording documenting a personal conversation of some duration between a Division of Fire and Emergency Services employee and another employee on a telephone extension dedicated to public use for 911 emergency calls (98-ORD-31), telephone records for calls originating from a telephone line used in a legislative leadership office (98-ORD-92), copies of pornographic material copied from an internet site by a school district employee (99-ORD-112), and personal computer files on a university owned computer (00-ORD-97). Common to each of these decisions is the recognition that public equipment purchased from public funds, and used by public employees on public time, is intended for purposes related to public service. The public's interest in disclosure of records documenting use of public equipment therefore generally prevails over any of the exceptions to public inspection codified at KRS 61.878(1)(a) through (1).
With specific reference to telephone billing records, we observed:
Involved here are the telephone numbers of unnamed individuals, groups or companies who have been called, presumably by public officials, on telephones purchased or leased by a public agency with public funds. Since public officials or employees are calling on telephones of a public agency at the public's expense it is presumed, or at least it is hoped, that some kind of public business is being conducted or some kind of public service is being rendered.
While it is true that it should not be too difficult to ascertain what person, group or business has been called by the public agency once the telephone number has been obtained, it seems to us that this is a price that must be paid by citizens and residents in a free and democratic society. As a general proposition the public's business must be conducted in public. If a person has been called by a public agency he may have either requested something of the public agency or he may have done something affecting the public.
OAG 86-21, p. 3, 4.
Nevertheless, we also recognized in OAG 86-21 that there would undoubtedly be occasions "when there is a legitimate need by a public agency to keep telephone numbers it has called confidential." Continuing, we noted that "when those situations arise the burden should be on the public agency to justify, under the Open Records Act or some other legislative enactment, why the record with the telephone number should not be released." Id. at 4. Under this line of reasoning, it is incumbent on the agency to "separate the excepted and make the nonexcepted material available for examination." KRS 61.878(4). In denying access to the excepted material, the agency must provide particularized justification for the partial nondisclosure.
It is the opinion of this office that the Lawrence County Sheriff's Department erred in issuing a blanket denial of Mr. Lewis' request on the basis of KRS 61.878(1)(h). If, in fact, the billing records contain the phone numbers of informants, victims of crime, and alleged criminal defendants, these entries may be redacted on this basis. "The fact that individual entries on telephone records enjoy protection under the Open Records Act does not mean that the entire category of records may escape scrutiny for purposes of determining if public funds, time and personnel are being properly used." 98-ORD-92, p. 13. Simply stated, a generic determination that all telephone records of employees of the Lawrence County Sheriff's Department are excluded from the Open Records Act does not satisfy the requirements of the Act. These employees must be held to the same standard of public accountability in the use of publicly funded cellular telephones as members of the Kentucky General Assembly and public employees as a whole.
We note, in closing, that portions of Mr. Lewis' open records request were framed as requests for information as opposed to records. For example, in the first part of his request he asks for "the number of cellular telephones owned, leased or rented by the Lawrence County Sheriff's office," rather than records documenting the number of cellular phones, such as inventory records. The Attorney General has recognized that the Open Records Act "does not require public agencies to carry out research or compile information to conform to a given request." OAG 85-45, p. 3 citing OAG 79-547 and OAG 83-333. Clearly, however, information (such as the number of cellular telephones) may be gleaned from public records, and it is the public agency's duty to make these records available for inspection or copying to facilitate this process.
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 proceedings.