01-ORD-075 | KOGC

Opinion

Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General

Open Records Decision

The question presented in these consolidated appeals is whether Campbell County Fire District No. 5 (misidentified as the City of Alexandria Fire Department) and the Central Campbell County Fire District (misidentified as Campbell County Fire District No. 2) violated the Open Records Act in the disposition of Bernard Blau's January 19, 2001, requests for various records relating to "the injuries, fire, and damages that occurred at 550 Johns Hill Road, at NKU Campus, Campbell County, Kentucky, on April 9, 2000 . . . ." For the reasons that follow, and upon the authorities cited, we conclude that the districts' responses were partially violative of the Act.

In his January 19 request, Mr. Blau asked that the districts provide him with copies of:

1) ambulance reports/runs, emergency records and EMS records and runs; 2) OSHA investigation, reports, results, orders and decisions; 3) notes; 4) photographs and pictures; 5) video tapes and/or TV coverage; 6) building blue prints, plans or floor plans, 7) police reports; 8) fire department records and reports; 9) newspaper articles; 10) Fire Marshal reports; 11) witness statements; 12) regulation, rules as applied to a fire of this [sic] for fire safety training; 13) medical records and hospital records on the four individuals injured; 14) police department log and fire department log.

On behalf of his client, the Central Campbell County Fire District, William G. Knoebel partially denied Mr. Blau's request in a letter dated January 23, 2001. On behalf of his client, the Campbell County Fire District No. 5, Mr. Knoebel partially denied Mr. Blau's request in a letter dated February 20, 2001. 1 These responses were virtually identical.

Mr. Knoebel characterized the responses as "general in nature and then specific as to each item." As a general basis for denying access, subject to the exceptions noted, he asserted that the districts have no duty to "send copies of records by mail to a requesting party when that person has not first inspected those records and then selected the items he wants copied . . . ." In support, Mr. Knoebel cited OAGs 76-735, 83-386, 88-60, 89-91, and 91-58. Moreover, he noted, prior Attorney General's open records opinions recognize the rights of public agencies to withhold certain information in ambulance run reports, including names, addresses, and ages of persons transported, where they were picked up and taken, and the nature of their injuries. In support, Mr. Knoebel cited OAGs 83-344, 86-25, 88-42, 90-117, and 92-75. Finally, in the response issued on behalf of Central Campbell County Fire District, he argued that although no lawsuit had been filed to date, "the possibility of litigation looms large in this matter." Relying on 93-ORD-58, Mr. Knoebel maintained that the presence of litigation does not nullify the exceptions to the Open Records Act, and "documents generated in the course of litigation, including work notes and memoranda containing the opinions, observations, advice, and recommendations of agency counsel and personnel are exempt from public inspection pursuant to KRS 61.878(1)[(i)] and [(j)] unless they are adopted as final agency action."

The districts agreed to furnish Mr. Blau with ambulance reports and emergency records, as well as medical records relating to the four individuals who were injured, upon receipt of properly executed releases. In addition, the districts agreed to provide copies of building blueprints, police reports, newspaper articles, and witness statements made by Mr. Blau's clients at a cost of twenty-five cents per page. 2 The districts requested that Mr. Blau describe with greater specificity records identified as "notes," "fire department records and reports," "fire marshal reports," "regulations, rules as applied to a fire . . . for fire safety training," and "police department log and fire department log, " but did not refuse to furnish these records.

Campbell County Fire District No. 5 denied Mr. Blau's request for "OSHA investigation, reports, results, orders and decisions," noting that "as it relates to the incident [in question], District No. 5 was not a party to any OSHA action." With reference to these same records, Central Campbell County Fire District agreed to furnish him with "a copy of the OSHA documents produced by OSHA since they are already a matter of public record," but refused to release "documentation prepared by the District" in anticipation of the OSHA hearing, but not filed with OSHA, on the basis of KRS 61.878(1). Campbell County Fire District No. 5 flatly denied Mr. Blau's request for photographs, pictures, and videotapes of the incident on the basis of their nonexistence. Central Campbell County Fire District characterized his request for photographs as "unclear," but agreed to provide him with a copy of a videotape made at the scene of the incident. We analyze the propriety of both the general and specific denials issued by the districts in the discussion that follows.

Requirement of on-site inspection

Relying on opinions issued prior to 1994, 3 the districts maintain that they have no legal obligation to mail Mr. Blau copies of the records identified in his request until he has conducted an on-site inspection of those records. It is the opinion of this office that the districts' position is only partially correct. On this issue, the Attorney General recently observed:

KRS 61.872(3)(a) and (b) states:

. . .

In construing KRS 61.872(3)(a) and (b), the Attorney General has observed:

The statute . . . contemplates records access by one of two means: On-site inspection during the regular office hours of the agency, in suitable facilities provided by the agency, or receipt of the records from the agency through the mail . . . . [w]e believe that the legislature, in using this language, intended to facilitate the broadest possible access to public records . . . . Thus, a requester who both lives and works in the same county where the public records are located may be required to inspect the records prior to receiving copies. [But] a requester who lives or works in a county other than the county where the public records are located may demand that the agency provide him with copies of records, without inspecting those records, if he precisely the records and they are readily available within the agency.

96-ORD-186, p. 3; see also, 97-ORD-3; 99-ORD-63; 99-ORD-67. [A requester who both lives and works in the county where the records are maintained], falls within the former category, and can be required to conduct an on-site inspection as a precondition to receipt of copies. (Footnote omitted.)

Nevertheless, early opinions of this office urge public agencies to "accommodate requesters whenever they can within the bounds of the efficient operation of their office." OAG 83-204, p. 4; compare OAG 86-24. "To require the requester to appear in person at the office of the agency" when his request is narrowly framed and the records can be easily accessed, "would not be more convenient to either party and would only inhibit the intended purposes of the Open Records Act. " Id. . . . Although [the public agency] is not legally obligated to do so, it may wish to consider mailing copies of these records upon receipt of prepayment for those copies.

00-ORD-211, p. 4-6; 01-ORD-8.

These open records decisions firmly establish that the fire districts must honor a request for copies of precisely described public records that are readily available within the districts' offices if Mr. Blau resides, or has his principal place of business, outside Campbell County, and if he pre-pays a reasonable copying charge not to exceed ten cents per page, plus postage. See, note 2 above. If Mr. Blau both resides and works in Campbell County, the districts may properly require on-site inspection as a precondition to furnishing him with copies, but may also, as Mr. Knoebel correctly notes, accommodate him "within the bounds of the efficient operation of" the districts by mailing him copies.

Threatened litigation

Acknowledging that "no lawsuit has been filed to date," Central Campbell County Fire District nevertheless generally denies Mr. Blau access to documents "generated in the course of litigation . . . pursuant to KRS 61.878(1)[(i)] and [(j)]." While its defense of the nondisclosure of records not yet created, relative to litigation not yet initiated, seems somewhat premature, we remind the district that although all exemptions remain available to an agency engaged in litigation when it responds to an open records request submitted by a party, the Attorney General has consistently rejected the argument that an agency's duties under the Open Records Act are not suspended in the presence of litigation. We refer the parties to 00-ORD-97, a copy of which is attached hereto and incorporated by reference.

Ambulance run reports

As their final "general" basis for denial, the districts assert that ambulance reports and emergency and EMS records must be withheld unless a written release is first obtained. In support, the districts rely on prior opinions of this office. Although these opinions were questioned in 94-ORD-133, we find that the districts' position is correct based on KRS 216B.410. That statute provides, in relevant part:

Ambulance provider and medical first response provider run report forms and the information transmitted electronically to the cabinet [for Health Services] shall be confidential. No person shall make an unauthorized release of information on an ambulance run report form or medical first response run report form. Only the patient or the patient's parent or legal guardian if the patient is a minor, or the patient's legal guardian or person with proper power of attorney if the patient is under legal disability as being incompetent or mentally ill, or a court of competent jurisdiction may authorize the release of information on a patient's run report form or the inspection or copying of the run report form. Any authorization for the release of information or for inspection or copying of a run report form shall be in writing.

Pursuant to KRS 61.878(1)(l), 4 this confidentiality provision is deemed incorporated into the Open Records Act, and compels nondisclosure of the requested records absent a properly executed release.

"Nonspecific" requests

Campbell County Fire District No. 5 and Central Campbell County Fire District characterize Mr. Blau's requests for "notes," "fire department records and reports," "fire marshal reports," "regulations, rules as applied to a fire . . . for fire safety training," and "police department log and fire department log" as insufficiently specific to permit the districts' records custodians to identify and locate the records sought. Respectfully, we disagree. Although these records descriptions are certainly nonspecific when viewed in the abstract, Mr. Blau has furnished the districts with a definite context, namely, the April 9, 2000, fire that occurred at 550 Johns Hill Road on the Northern Kentucky University campus, that narrowly restricts the scope of his request. Simply put, it is not any and all "notes" generated by the districts that he wishes to access, but "notes" generated by the districts in relation to the April 9, 2000 fire on the NKU campus. So too, he narrows the scope of the remaining requests by reference to this incident. Although other statutory bases may exist for denying access to the records in Mr. Blau's request, it is our opinion that he identified those records with sufficient clarity to enable the districts to locate and make them available.

Because Mr. Blau requested that copies be furnished to him by mail, he must be held to the higher standard of "precisely" describing records established in KRS 61.872(3)(b), and construed in 97-ORD-46, a copy of which is attached hereto. At page 4 of that decision, the Attorney General opined:

A description is precise if it is "clearly stated or depicted," Webster's II, New Riverside University Dictionary 926 (1988); "strictly defined; accurately stated; definite, " Webster's New World Dictionary 1120 (2d ed. 1974); and "devoid of anything vague, equivocal, or uncertain." Webster's Third New International Dictionary 1784 (1963). We believe that a requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in definite, specific, and unequivocal terms the records he wishes to access by mail.

In our view, Mr. Blau's requests satisfy this standard insofar as they are definite, specific, and unequivocal as to category (i.e., notes, fire marshal reports, logs) and incident (i.e., the April 9, 2000, fire at the NKU campus) . Accordingly, Mr. Blau is entitled to an unequivocal response as to their existence, and if they exist, as to the applicable exemption, if any.

Nonexistent records

In response to Mr. Blau's request for photographs and videotapes of the April 9, 2000, fire at NKU, as well as records relating to the OSHA hearing, Campbell County Fire District No. 5 indicated that his request could not be honored because no responsive records exist. 5 We affirm District No. 5's denial on this basis. A public agency cannot produce for inspection a record that does not exist or which is not in its possession or custody. Numerous opinions of this office support this view. See, e.g. 01-ORD-51, copy enclosed, and authorities cited therein. The district's actions were consistent with the rule announced in OAG 90-26 wherein this office held, "If a record of which inspection is sought does not exist, the agency should specifically so indicate."

Records relating to OSHA hearing

Although Central Campbell County Fire District 6 agreed to allow Mr. Blau access to "OSHA documents produced by OSHA," inasmuch as they were "already a matter of public record," the district denied that portion of his request that implicated documentation prepared by the district in anticipation of the OSHA hearing, but not submitted to OSHA. In support, the district cited KRS 61.878(1). That statute provides:

The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery [.]

The Attorney General has construed this provision to mean that:

should an agency deny a request, submitted by a party to a civil action, for properly excludable public records which are related to the action, and which are also protected from pretrial discovery by the Rules of Civil Procedure, and the requester/ party subsequently challenges that denial in a court of competent jurisdiction, pursuant to KRS 61.882, the court shall not order disclosure of those records to the requester/ party, though it might otherwise do so in its discretion. . . . It does not . . . alter our view that an agency's duty under the Act is not suspended in the presence of litigation.

95-ORD-18, p. 4. Prior to the issuance of this decision, the Attorney General had held that KRS 61.878(1) could not be invoked by a public agency to deny non-litigants access to public records which relate to a pending civil action. 94-ORD-19. It was this decision that the Court of Appeals affirmed in Department of Corrections v. Courier-Journal and Louisville Times, Ky. App., 914 S.W.2d 349 (1996). In subsequent open records decisions, the Attorney General confirmed that KRS 61.878(1) does not prohibit access by a party litigant to nonprivileged, nonexempt public records in the custody of a public agency against which the litigant had brought suit or by which he had been sued. 95-ORD-18; 96-ORD-138; 98-ORD-39; 98-ORD-87. Only if the records to which the party litigant requests access are both exempt and nondiscoverable does KRS 61.878(1) authorize nondisclosure. Compare 98-ORD-15 (records requested by party litigant which pertain to pending litigation, and fall within the attorney client privilege, may be withheld under KRS 61.878(1) because they are protected from pretrial discovery by the Rules of Civil Procedure) .

It is by no means clear how KRS 61.878(1) applies to records created by the district in anticipation of an OSHA hearing when they are requested by an individual who was not a party to that action. Inasmuch as the district carries the burden of proof in sustaining its denial per KRS 61.880(2)(c), we cannot affirm the denial of this portion of Mr. Blau's request on this basis. As above, although other exceptions to public inspection may be invoked as the statutory basis for denying access, KRS 61.878(1) does not appear to apply to records generated by the district in conjunction with an OSHA hearing.

Conclusion

In sum, we find that the responses issued by Campbell County Fire District No. 5 and the Central Campbell County Fire District were only partially consistent with the Open Records Act. The districts should be guided by the position set forth above in formulating new responses to Mr. Blau's requests.

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.

Bernard Blau3699 Alexandria PikeCold Spring, KY 40176

William G. KnoebelJolly, Blau, Kriege & Turner, P.L.L.C.3699 Alexandria PikeP.O. Box 249Cold Spring, KY 41076

Footnotes

Footnotes

1 Mr. Knoebel offered the following explanation for District No. 5's delay in responding to Mr. Blau's request:

Chief Schaub was not familiar with the requirements of the Open Records Act and did not consult me when the request was received. Instead he attempted to contact Mr. Blau by telephone. In his conversation with Mr. Blau, Chief Schaub requested a written authorization. Receiving none he took no further action until he received a copy of the appeal.