Request By:
Mr. George Sorrell
2499 Capital of Texas Hwy. S.
Bldg. A., Ste. 204
Austin, TX 78746Mr. James Donato
2213 Paradise Road
Las Vegas, NV 89104Ms. Glenda Humphrey George
Lexington Fayette Urban County Government
200 East Main Street
Lexington, KY 40507Kenyon Meyer
Dinsmore & Shohl, LLP
462 S. 4th Avenue, Ste. 2000
Louisville, KY 40202
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
These matters, having been presented to the Attorney General in two separate appeals but presenting similar questions of law, are consolidated for purposes of adjudication under KRS 61.880(2). It is the decision of this office that the Lexington Fayette Urban County Government Division of Police improperly relied on KRS 61.878(1)(a) in partially denying the requesters access to those portions of accident reports containing information of a personal nature. Because KRS 189.635(6) places no restriction on the information in the accident reports that must be disclosed to news-gathering organizations, limiting only the use to which the information may be put, these organizations are entitled to the same right of access as the parties identified in KRS 189.635(5).
By letter dated October 2, 2001, Prada Publishing, Inc., requested access to all traffic accident reports generated by the LFUCG Division of Police in the period from September 29 through October 1, 2001. 1 Accompanying this request was a notarized statement signed by Prada Publishing president, George Sorrell, confirming that "Prada Publishing is a news-gathering organization and will utilize the accident reports received solely for the purpose of publishing or broadcasting the news." On October 4, 2001, LFUCG corporate counsel, Glenda Humphrey George, responded to Prada's request. Ms. George advised Mr. Sorrell that pursuant to KRS 189.635(5) and (6) the Division of Police affords unrestricted access to accident reports to the parties to the accident, the insurers of parties who are the subject of the reports, and the attorneys of the parties, but places certain restrictions on access to these reports by news-gathering organizations. 2 Relying on KRS 61.878(1)(a), she explained that the following information is redacted from accident reports provided to news-gathering organizations: home addresses, social security numbers, drivers' license numbers, vehicle identification numbers, and insurance information. Ms. George subsequently advised Mr. Sorrell that the Division of Police also withholds dates of birth under authority of KRS 61.878(1)(a). In support, she cited
Kentucky Board of Examiners of Psychologists v. The Courier-Journal and Louisville Times Co., Ky., 826 S.W.2d 324 (1992),
Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994), and the Driver's Privacy Act, 18 U.S.C. § 2721. Following an exchange of letters, Prada Publishing initiated this open records appeal on November 9, 2001.
By letter dated October 18, 2001, Capitol Publishing affiliate Americana Tribune requested access to all traffic accident reports generated by the LFUCG Division of Police in the period from October 7 through 17, 2001. 3 Accompanying this request was a notarized statement signed by Michael R. Watts confirming that "Americana Tribune is a news-gathering organization and will utilize the accident reports received solely for the purpose of publishing or broadcasting the news." On October 24, 2001, Ms. George issued a response to Capitol Publishing that mirrored her earlier response to Prada Publishing. Following an exchange of letters, Capitol Publishing initiated this open records appeal on November 8, 2001.
On appeal, both Prada Publishing and Capitol Publishing assert that they are entitled to the same unredacted copies of accident reports under KRS 189.635(6) as the parties, insurers of parties, and attorneys of parties involved in the accident are entitled under KRS 189.635(5). While Prada focuses on the right of access to home addresses appearing on accident reports, and Capitol focuses on the right of access to all redacted information, both maintain that KRS 189.635(5) and (6) "provide specific disclosure requirements of accident reports to those entities enumerated in § 189.635(5) and (6) without exception as to what information contained within the accident reports is subject to disclosure and/or what information is not subject to disclosure. " Both firmly reject the Division's reliance on KRS 61.878(1)(a), and the case law construing it, as well as its reliance on the Driver's Privacy Act, 19 U.S.C. § 2721.
The LFUCG Division of Police responds that the argument advanced by Capitol Publishing and Prada is flawed. Noting that there is no limitation on the use of accident reports by persons listed in Subsection (5), Ms. George explains:
As to the news-gathering organizations listed in subsection (6), however, the General Assembly has placed restrictions on how they can use accident reports. Subsection (6) specifically states that the reports can only be used for the purpose of publishing or broadcasting the news and cannot be used for a commercial purpose other than publishing or broadcasting the information contained in the report.
It is the Division's position that "information redacted from the report is not needed by a news-gathering organization to publish or broadcast the facts of an accident." In sum, Ms. George asserts, "Because the General Assembly has placed limitations on the use of accident reports by news-gathering organizations, the Government . . . is entitled to redact any information that falls within the exemptions contained in KRS 61.878."
Respectfully, we disagree. Our decision turns on the express language of KRS 189.635(5) and (6) which provides:
(5) 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 parents 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.
(6) The report shall be made available to a news-gathering organization, solely for the purpose of publishing or broadcasting the news. The news-gathering organization shall not use or distribute the report, or knowingly allow its use or distribution, for a commercial purpose other than the news-gathering organization's publication or broadcasting of the information in the report. A newspaper, periodical, or radio or television station shall not be held to have used or knowingly allowed the use of the report for a commercial purpose merely because of its publication or broadcast. 4
(Emphasis added.) These provisions place an affirmative duty on law enforcement agencies that maintain accident reports to make those reports available to the individuals or entities identified therein without restriction. The only restriction that appears in the statute is the restriction imposed on news-gathering organizations from using or distributing the reports, or knowingly allowing their use or distribution, for a commercial purpose. We do not believe that the language upon which the Division of Police relies can be construed as a grant of authority to engraft the exception to public inspection codified at KRS 61.878(1)(a). KRS 189.635(5) and (6) mandate unrestricted access by the named individuals or entities to accident reports, and we therefore cannot be drawn into the balancing of interests analysis established by the courts in Board of Examiners , above, and Zink , above, relative to the proper invocation of KRS 61.878(1)(a).
Moreover, KRS 189.635 is a specific statute mandating disclosure of accident reports in the custody of law enforcement agencies required to file reports with the Department of State Police to named individuals and entities, and governs over the general statute relating to access to all public records in the custody of public agencies codified at KRS 61.870 et seq . Because KRS 61.878(1)(a) is a residual and general statute, it cannot be said to apply where a specific statute exists requiring disclosure. Employing the rule of statutory construction that the specific statute prevails over the general statute, we conclude that the Division's reliance on KRS 61.878(1)(a) was misplaced.
City of Bowling Green v. Board of Education of Bowling Green Independent School District, Ky., 443 S.W.2d 243 (1969); 99-ORD-102 (KRS 197.025(7) extends deadline for state penal institution response to open records request from three to five business days and is a specific statute that prevails over general statute governing agency response codified at KRS 61.880(1)); 00-ORD-110 (KRS 64.012 establishes fees for copies of certain records furnished by county clerk and is a specific statute that prevails over general statute governing copying charges codified at KRS 61.874).
We are not persuaded that the Driver's Privacy Act, 18 U.S.C. § 2721, provides additional support for the Division's position. While we acknowledge that the federal act extends protection to personal information appearing in motor vehicle records, and agree that it evinces a strong congressional commitment to preventing misuse of such information, the act applies only to "a state department of motor vehicles, and any officer, employee, or contractor thereof." 18 U.S.C. § 2721(a). It is inapplicable to law enforcement agencies, and the accident reports they generate, notwithstanding the fact that some of the information that appears in an accident report is extracted from motor vehicle records.
Nevertheless, the language of KRS 189.635(6) prohibiting news-gathering organizations from using or distributing accident reports for a commercial purpose, or knowingly allowing their use or distribution for a commercial purpose, appears to us to evince the same legislative commitment to protecting personal privacy. The language nevertheless falls short of this goal. If it is the legislative will that protection be extended to parties involved in vehicular accidents, the legislature may wish to amend KRS 189.635(6) in such a way as to permit law enforcement agencies to withhold personal information consisting of home address and telephone number, social security number, date of birth, driver's license number, and insurance information. Until it does so, we are bound to observe the express language of KRS 189.635(5) and (6) requiring disclosure of unredacted copies of accident reports to all named individuals or entities, including news-gathering organizations solely for the purpose of publishing or broadcasting the news.
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 Shortly thereafter, Prada began submitting daily requests for accident reports.
2 We have been apprised that both the Kentucky State Police and the City of Louisville Division of Police provide unredacted copies of accident reports to all named individuals or entities.
3 Americana Tribune and another Capitol Publishing affiliate, the Kentucky Free Press, have also continued to submit regular requests for access to accident reports, and the Kentucky Free Press has continued to exercise the right of on-site inspection of redacted copies of the reports.
4 On January 2, 2002, Judge John G. Heyburn II upheld the constitutionality of KRS 189.635(5) and (6). Amelkin v. McClure , Civil Action No. 3:94 CV-360H (W.D. Ky. 2002).