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 Covington Police Department subverted the intent of the Open Records Act in the disposition of Chris Henson's July 16, 2001, request for three categories of arrest reports and/or traffic citations maintained by the department. For the reasons that follow, we find that although the facts presented in the record on appeal are disputed, the Covington Police Department violated the Open Records Act by refusing to mail copies of those records to Mr. Henson. In so holding, we are guided by KRS 61.880(2)(c), which states that "the burden of proof in sustaining [agency] action shall rest with the agency," and by the recognition that "statutes enacted for the public benefit should be interpreted most favorably to the public."
Board of Public Instruction v. Doran, Fla., 224 So.2d 693 (1969) cited with approval in
Courier-Journal and Louisville Times Co. v. University of Louisville Board of Trustees, Ky., 569 S.W.2d 374 (1979).
In a letter dated July 16, 2001, Mr. Henson requested copies of public records identified as follows:
1. Report # 01-050038 dated 7-9-01;
2. All arrest and traffic citations in the name of "Sharon A. Dean" . . .;
3. All arrest and traffic citations in the name of "Michelle Price" 1 . . . .
Indicating that he "work[s] outside Kenton County," Mr. Henson asked that the department mail the records to him. To facilitate access by receipt through the mail of the records, he included a stamped, self-addressed envelope "as required by dept. policy." 2 Having received no response to his request, Mr. Henson initiated an open records appeal on July 30, 2001.
On August 10, 2001, Lieutenant Danny Miles, official records custodian for the Covington Police Department, notified Mr. Henson that the department would honor his request, and that he could "view these documents at [Lt. Miles'] office between the hours of 0830 and 1630, Monday thru Friday." He requested that Mr. Henson schedule an appointment to inspect the records in advance of his arrival. One day earlier, Lt. Miles notified this office that he would prepare a letter to Mr. Henson "indicating the availability of this information for his review, subject to the limitations of KRS 61.872." With reference to the requested report, identified by number and date, Lt. Miles advised:
The Report # referred to is simply a CAD (Computer Aided Dispatch) reference number for this incident and was assigned to indicate that an arrest was made. The officer produced no formal written report for this incident.
He emphasized that "at no time did the Covington Police Department willfully withhold non-exempt public records from disclosure." 3 On August 17, the Attorney General notified Mr. Henson by mail that pursuant to 40 KAR 1:030 Section 6 this office would not issue a decision in this matter, all disputed issues having been resolved by disclosure of the records.
Shortly thereafter, Mr. Henson resubmitted his request for receipt of copies by mail of the records previously identified, asserting that he "work[s] outside of Kenton County," and is entitled to receive copies, as opposed to conducting an on-site inspection, pursuant to KRS 61.872(3)(b). Lt. Miles responded to the resubmitted request on August 20, acknowledging the application of KRS 61.872(3) , but arguing that "all correspondence from [Mr. Henson] in the past has all indicated [the 1939 Augustine Avenue address]," and that none of the correspondence "indicate[s] a business address or occupation at all." Further, he noted, "registered mail regarding this issue has been sent to and received at the address on Augustine Avenue in Covington." This appeal followed.
In a follow-up letter directed to this office following commencement of Mr. Henson's appeal, Lt. Miles reiterated that "Mr. Henson is not employed at all," and expressed the belief that "his constant requests are at the point in which [sic] I believe he intends to disrupt other essential functions of this public agency. " He offered little support for his statements concerning Mr. Henson's employment status, and no evidence, clear and convincing or otherwise, that Mr. Henson's requests are intended to disrupt essential departmental functions. Lt. Miles did, however, include a copy of a registered mail receipt "signed by Chris Henson during the day when delivered by U.S. Mail. "
Although he declined to furnish Lt. Miles or this office with the identity of his employer, Mr. Henson refuted the department's allegation that he is unemployed in a letter to this office dated September 1, 2001. It was his position that the Open Records Act does not require him to disclose the identity of his employer, and that to do so might jeopardize his position if the police department questioned his employer about his employment status.
Mr. Henson having affirmed that his principal place of business is outside Kenton County, and the Covington Police Department having failed to produce any persuasive proof to the contrary, we find that the department is required to mail him copies of the records identified in his request "upon receipt of all fees and the cost of mailing. " KRS 61.872(3)(b). 4 This holding is consistent with the position we took in both 01-ORD-8 and 01-ORD-15, involving these parties, wherein we recognized that "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 describes the records and they are readily available within the agency." 01-ORD-8, p. 11, citing KRS 61.872(3)(a) and (b) as construed in 96-ORD-186, 97-ORD-3, 99-ORD-63, and 99-ORD-67; see also 01-ORD-15, p. 3. 5 Further, it is consistent with the provision of the Open Records Act assigning the burden of proof in sustaining agency action to the agency. KRS 61.880(2)(c).
The department demands that Mr. Henson conduct an on-site inspection of the records prior to obtaining copies based on the belief that he is unemployed, and therefore cannot have a principal place of business outside of Kenton County. In support, the department notes that "all correspondence from [Mr. Henson] in the past has indicated [the 1939 Augustine Avenue address]," and that none of the correspondence "indicate[s] a business address or occupation at all." Additionally, the department notes that "registered mail regarding this issue has been sent to and received at the address on Augustine Avenue in Covington." From this, the department apparently deduces that "Mr. Henson is not employed at all." Mr. Henson, in turn, refutes this allegation, properly asserting that he has no duty to produce the name of his employer to rebut the department's allegations. 6 On this point, Mr. Henson is correct. Because the Covington Police Department is unable to meet its burden of proof in sustaining its actions, we conclude that the department subverted the intent of the Open Records Act by refusing to mail Mr. Henson copies of the records, identified in his request.
Further, we find that the department fails to establish, by clear and convincing evidence, that Mr. Henson's request placed an unreasonable burden on it. As we noted in 01-ORD-8, the burden imposed by KRS 61.872(6), 7 upon which the department apparently relies, "is not sustained by the bare allegation that the request is unreasonably burdensome" or otherwise intended to disrupt the agency's essential functions. 01-ORD-8, p. 7. We refer the parties to the discussion found at pages 7 through 10 of that decision, a copy of which is attached hereto and incorporated by reference. In particular, we direct their attention to the following language appearing in that decision:
Although there is no limitation on the number of requests and subsequent appeals that an applicant may submit, there is certainly a point at which the applicant's repeated use of the law becomes an abuse of the law within the contemplation of KRS 61.872(6). It is for the public agency to build the case.
01-ORD-8, p. 10 citing 96-ORD-193, p. 5. Here, as in 01-ORD-8, the Covington Police Department has failed to build such a case.
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.
Chris Henson1933 Augustine AvenueCovington, KY 41014
Lt. Danny MilesAdministrative Supervisor Covington Police DepartmentOne Police Memorial DriveCovington, KY 41014
John J. FossettCity Attorney638 Madison AvenueCovington, KY 41011
Footnotes
Footnotes
1 Mr. Henson identified Ms. Dean and Ms. Price by social security number, date of birth, gender, and race, information we omit in deference to the privacy interests of these individuals.
2 At footnote 4 of 01-ORD-8, involving these parties, the Attorney General held that no statutory authority exists for the department's policy requiring submission of a stamped, self-addressed envelope, and that the policy is therefore improper. The department should discontinue this practice, if it has not already done so.
3 Lt. Miles offered the following explanation for the delay in responding to Mr. Henson's request:
Chief Albert Bosse was off sick and did not open this correspondence until this morning, 8/9/01.
We refer the Department to 01-ORD-140, and in particular, the discussion at pages 5 through 7 of that decision, a copy of which is enclosed, requiring public agencies to provide for the uninterrupted processing of open records requests.
4 It is unclear what, if any, policy the Covington Police Department has relative to the imposition of a reasonable copying charge. While the department may impose a charge not to exceed ten cents per page, pursuant to KRS 61.874(3), that charge must be assessed uniformly. Although the department may recover the cost of mailing, per KRS 61.872(3)(b), this provision does not authorize it to require the submission of a stamped, self-addressed envelope, as noted above.
5 The Covington Police Department does not argue that the requested records were not described with sufficient precision, or that they are not readily available within the department.
6 We hasten to note that although no penalties exist for misrepresentations made to the Attorney General in an open records appeal, should the Covington Police Department appeal the Attorney General's decision to the circuit court, and should Mr. Henson be required to state under oath that he is employed outside Kenton County, and should the court determine that his statements are false, the court may very well impose sanctions on Mr. Henson.
7 KRS 61.872(6) states:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
(Emphasis added.)