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 Somerset Police Department violated provisions of the Open Records Act in the disposition of a request for records submitted by Robert W. Riley on behalf of his client Accident Injury Medical Centers. For the reasons that follow, we find that although its response was procedurally deficient, the Department properly relied on KRS 189.635(5), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), as the basis for denying his request.
The record before us reflects that on May 4, 2001, an AIMC representative made an oral request to the Somerset Police Department for copies of accident reports generated in the past week. That request was denied prompting AIMC's attorney, Mr. Riley, to submit a written request for these records to Somerset City Attorney Joe L. Travis on May 7, 2001. In his request, Mr. Riley noted that the apparent basis for the Department's denial of his client's request was the assumption that the accident reports would be used for a commercial purpose. He challenged this position, arguing:
[T]his position has been taken in reliance on KRS 61.874 which provides, inter alia, that a public agency is not required to release non exempt public records for a commercial purpose unless the requestor states the commercial purpose and enters into a contract with the agency for the use of the agency's records in that commercial purpose by paying a fee to the agency which is based upon either the cost to the agency of acquiring the records or both. Nothing in this statute allows a public agency to deny access to the records even if they are to be used for a commercial purpose so long as this procedure is followed. With regard to accident reports generated by the Somerset Police Department, the cost to the agency of producing and/or creating these records is negligible at best and, to my knowledge, the Police Department has not established a fee nor did it offer to contract with AIMC to allow it access to these records. Clearly, there is no prohibition restricting the release of these records even if they are to be used for a commercial purpose.
In addition, Mr. Riley referenced earlier correspondence in which he cited open records decisions of this office relating to KRS 189.635, and its unsettled status following the United States District Court's decision in Stephen Amelkin, D.C. v. Commissioner, Department of State Police, Civil Action No. 3:94 CV-360-A (W.D. Ky. June 4, 1996). He asked that Mr. Travis "advise in writing immediately as to whether the Somerset Police Department will release the records which have been requested and will do so on an ongoing basis." Having received no response to this letter, Mr. Riley initiated an open records appeal to this office.
In a letter to this office following commencement of Mr. Riley's appeal, Mr. Travis denied his request for accident reports. Relying on
Amelkin, et al. v. McClure, 205 F.3d 293 (6th Cir. 2000), Mr. Travis asserted that "[t]his case upholds KRS 189.635 which provides that accident reports shall remain confidential and not be disbursed for commercial purposes," concluding that Amelkin "prohibits the police department from dispensing accident reports except to family members, insurance companies, and the press."
On appeal, Mr. Riley argues:
[I]t is the position of the undersigned and AIMC that because of the injunction entered in the action styled Steven Amelkin, D.C. v. Commissioner, Department of State Police, Civil Action No. 934CV-260-A (W.D., Ky., June 4, 1996, appeal docketed, No. 96-5942 (6th Cir. July 2, 1996) enforcement of the 1994 amendments to KRS 189.635 cannot be implemented is prohibited [sic]. In addition, nothing in the Kentucky Open Records Act prohibits access to the information even if it will be used for a commercial purpose. The act provides, however, that a public agency may charge a reasonable fee for the use of certain records or public information under certain circumstances. None of those circumstances are present here. Accordingly, it is our position that there is no basis upon which a denial of access to the requested police accident reports can be sustained and your office should so opine.
Mr. Riley requested that the Attorney General review the Somerset Police Department's actions in light of this analysis. Having done so, we conclude that although the Department erred in failing to respond to Mr. Riley's May 7 request, it properly relied on KRS 189.635(5) in denying that request.
The Somerset Police Department violated the procedural requirements of the Open Records Act set forth at KRS 61.880(1) by failing to respond in writing, and within three business days to Mr. Riley's request. KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In construing this provision, the Kentucky Court of Appeals has observed:
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). As noted, it expressly requires a timely, written response directed to the person making the request. The Department's failure to respond to Mr. Riley in writing, and within three business days of receipt of the request, constituted a procedural violation of the Open Records Act. We urge the Department to review the cited provision to insure that future responses conform to the Open Records Act.
Turning to the substantive issue in this appeal, we find that the Department's denial was properly based on KRS 189.635(5), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 1 KRS 189.635(5) provides:
All accident reports filed with the Department of State Police in compliance with subsection (4) above shall remain confidential except that the department may disclose the identity of a person involved in an accident when his identity is not otherwise known or when he denies his presence at an accident. Except as provided in subsection (7) of this section, all other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (6) of this section. These reports shall be made available only to the parties to the accident, the parent or guardians of a minor who is party to the accident, and the insurers of any party who is the subject of the report, or to the attorneys of the parties.
KRS 189.635(5) (emphasis added). Subsection 6 of KRS 189.635 permits disclosure of accident reports to news gathering organizations "solely for the purpose of publishing or broadcasting the news." In 96-ORD-168, the Attorney General undertook an examination of the federal district court's decision in the Amelkin case, which had recently been appealed to the Sixth Circuit Court of Appeals, observing:
In Amelkin, the federal district court for the Western District of Kentucky analyzed the constitutionality of Senate Bill 351, which amended KRS 189.635 to prohibit disclosure of accident reports filed with the Department of State Police except under narrowly defined circumstances, and to certain identified individuals, specifically, insurers and media representatives. The bill was apparently aimed at discouraging direct solicitation of business for pecuniary gain and had an immediate impact on attorneys and chiropractors who filed suit challenging the amendment. The court concluded that the statute, as amended, is unconstitutional, and, in its judgment, permanently enjoined defendants, including this office, from enforcing "the 1994 amendments to KRS 189.635 and KRS 61.874, et seq., and . . . KRS 438.065."
96-ORD-168, p. 4. Over a course of years, Amelkin proceeded through the courts, ultimately arriving at the United States Supreme Court. The Supreme Court vacated the lower court's decision and remanded the case for further consideration in light of
Los Angeles Police Dept. v. United Reporting Publishing Corp., 528 U.S. 32, 120 S. Ct. 483, 145 LED.2d 451 (1999). On remand, the Sixth Circuit reversed the district court's decision to enjoin enforcement of KRS 189.635(5) and (6), which was based upon a "facial challenge" to the statute, and remanded the case to the district court for consideration of the "as applied" challenge to the statute.
Amelkin v. McClure, 205 F.3d 293 (6th Cir. 2000). The case is currently before the district court. That court recently eliminated any lingering question as to the effect of the 1996 injunctions by issuing an order dissolving "all injunctions previously entered in this case" on June 11, 2001 (copy enclosed).
Given Amelkin's lengthy procedural history, some uncertainty existed as to the scope and effect of the federal district court's injunctions from 1996 until June of this year. Regardless of whether the injunctions bound the Somerset Police Department on May 7, 2001, and we are uncertain as to whether they did, we find that the Department may now rely on KRS 189.635(5) as the basis for denying any request for accident reports not submitted by the parties to the accident, the parents or guardians of a minor who is party to the accident, the insurers of any party who is the subject of the report, the attorneys of the parties, and news gathering organizations "solely for the purpose of publishing or broadcasting the news." KRS 189.635(6). This specific confidentiality provision overrides the general rule of openness mandated by the Open Records Act.
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.
Footnotes
Footnotes
1 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.