Opinion
Opinion By: Albert B. Chandler III,Attorney General;James M. Ringo,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Covington Police Department's denial of Chris Henson's request for copies of two accident reports violated the Open Records Act. For the reasons that follow, we conclude the denial did not violate the Act.
By letter dated July 26, 2002, Chris Henson submitted an open records request to the Department, requesting copies of 12 police reports.
By letter dated July 29, 2002, the Department provided Mr. Henson with 10 of the requested reports, but denied his request for two accident reports. In denying access to the accident reports, Lt. Patrick Swift advised:
This is in response to your Open Records Request post marked July 25, 2002, and received by me on July 26, 2002. Enclosed you will find 10 of the 12 reports you have requested. Excluded are 02-036623 and 02-006812. These are accident reports and are exempt from disclosure per KRS 189.635.
In his letter of appeal, Mr. Henson argues that the agency's response was infirm because it did not cite the subsection of KRS 189.635 upon which it relied in denying access to the reports, nor did it cite an appropriate exception of the Open Records Act authorizing nondisclosure; that KRS 189.635 pertains only to the State Justice Cabinet, the State Police, and the State Department of Transportation, and not the Covington Police Department; and that prior decisions of this office have held that accident reports prepared by law enforcement officers are not confidential and are open records under the Open Records Act.
After receipt of Notification of the appeal and a copy of Mr. Henson's letter of appeal, John Jay Fossett, City Solicitor, on behalf of the Department, provided this office with a response to the issues raised in the appeal. Elaborating on the Department's initial response, Mr. Fossett advised, in relevant part:
In this particular request, Mr. Henson requested copies of twelve separate police reports. In his response to Mr. Henson, Lt. Patrick Swift indicated that two of the twelve reports were excluded from public disclosure pursuant to KRS 189.635 . Lt. Swift indicated that he called the Attorney General's Office earlier this year to request advice regarding disclosure of police accident reports, and was told that these reports are confidential and not disclosable to the general public pursuant to KRS 189.635. KRS 61.878(1)(l) specifically provides that "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" fall outside the purview of the Kentucky Open Records Act. Furthermore, KRS 61.878(1)(a) provides that "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
Mr. Henson's appeal relies upon OAG 80-210, OAG 89-76, and 97-ORD-18, along with Amelkin v. Commissioner, 936 F. Supp. 428 (W.D. Ky. 1996). However, Mr. Henson's reliance upon these decisions is misplaced since they are not currently valid. The U.S. Court of Appeals for the Sixth Circuit remanded Amelkin back to the U.S. District Court for the Western District of Kentucky, which subsequently held that "The Commonwealth has easily met the burden to demonstrate that [KRS] § 189.635(5)-(6) advances the protection of potential clients' privacy, and accordingly, the Court must uphold it."
In his appeal, Mr. Henson also asserts that "KRS 189.635 pertains to the Justice Cabinet, State Police, and dept. of Transportation only, and not to the City Police dept." The City of Covington disagrees with this analysis of KRS 189.635(5) in that, if Mr. Henson's assessment were correct, it would defeat the purpose of KRS 189.635(5), which is to protect the privacy of all citizens of the Commonwealth. In addition, by directing Mr. Henson to KRS 189.635(5), Lt. Swift sufficiently explained why those reports were not disclosed to him.
We are asked to determine whether the Department's denial of Mr. Henson's request for a copy of these accident reports violated the Open Records Act. For the reasons that follow, we conclude that the Department's denial was properly based upon KRS 189.635(5), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
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.
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), in tandem with KRS 61.878(1)(l), requires that a public agency deny a request for copies of accident reports not submitted by 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. Mr. Henson does not claim nor has he demonstrated that he falls within any of the classes of persons entitled to receive a copy of the accident report. Accordingly, we conclude the Department properly denied his request for copies of the two accident reports.
Moreover, KRS 189.635(2) requires that a law enforcement officer having jurisdiction over a vehicle accident shall investigate the accident and file a written report of the accident with his law enforcement agency. KRS 189.635(3) requires that the law enforcement agency file a report of the accident with the Department of State Police within ten (10) days after the occurrence of the accident upon forms provided by the department. As noted above, KRS 189.635(5) requires that "all other accident reports required by this section, and the information contained in the reports, shall remain confidential and exempt from public disclosure except to a properly executed subpoena or court order, or except pursuant to subsection 6 of this section."
Since the Covington Police Department is required to prepare and file an accident report under KRS 189.635, that statute applies to it and its accident reports are exempt from disclosure, unless a requester falls within one of the classes entitled to a copy of the report.
Since the application of KRS 189.635(5), in tandem with KRS 61.878(1)(l), is dispositive of the instant appeal, we need not address other bases relied upon by the Department in support of the denial of Mr. Henson's request for copies of the two accident reports.
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 proceeding.
Chris Henson1939 Augustine AvenueCovington, KY 41014
Lt. Patrick SwiftCovington, KY Police Department1929 Madison AvenueCovington, KY 41014
John Jay FosterCity Solicitor638 Madison AvenueCovington, KY 41011