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 Bellevue Police Department violated the Open Records Act in the disposition of Chris Henson's June 13, 2003 request for "copies of all offense/incident reports you have on file that has [sic] reference to the [eleven] individuals listed [by name, gender, race, date of birth, and social security number] below." For the reasons that follow, we affirm the Department's disposition of Mr. Henson's request, but have referred the records management issue this appeal raises to the Department for Libraries and Archives pursuant to KRS 61.8715. 1
In a response dated June 18, 2003, Bellevue Chief of Police William Cole advised Mr. Henson that the Department would be unable to honor his request "because it is too broad." He explained:
You have listed eleven names of people, and you have asked for "all . . . reports that (have) reference to the individuals listed . . . ." There is certainly the potential that the number of records could be voluminous, particularly since you have listed so many individuals, and no time frame to use as a guide for the reports. Nor have you listed the kind of report you are seeking.
Chief Cole asked Mr. Henson "to narrow the focus of [his request] so that [the Department] may honor it."
Shortly thereafter, Mr. Henson initiated this appeal asserting that his request "was very specific, includ[ing] many particulars about the individuals," that it could or should have been construed to include "reports filed by the individuals themselves [as well as] reports made against the individual by others," and that because the retention period for offense/incident reports is five years, 2 this was the implicit time frame for his request. He noted that similar requests submitted to police departments of the same or reduced size yielded nearly immediate results through the departments' use of "their records division indices or their Computer Aided Dispatching System." Mr. Henson objected to Chief Cole's request that he communicate further with the Department in an attempt to narrow the scope of his request, noting that by virtue of KRS 61.880(1) "the agency's response constitutes final agency action." 3 (Emphasis in original.)
In supplemental correspondence directed to this office following commencement of Mr. Henson's appeal, Chief Cole elaborated on the Department's position. He observed:
I maintain that I have not denied his request. My letter of response to Mr. Henson was a plainly written explanation that more and different information would be required from him to assist us in our search for the records he is requesting.
In the request from Mr. Henson, he is making some assumptions that are simply incorrect in reference to our police department. First he assumes that terms such as "offense/incident reports" have exactly the same meaning from one agency to the next. That is not quite accurate. The terms he used in his request are generic terms that may not have the same meaning within our department as they do with Mr. Henson. Further, there are types of reports within our department that do not necessarily fall into the generic category of "offense/incident report", but which may likely include the information that is being sought by Mr. Henson.
Mr. Henson also makes the assumption that all police departments have a CAD system. The City of Bellevue is dispatched by the Campbell County Consolidated Dispatch Center, which has been in operation for less than 1 year. Its CAD system has been in operation for less than 6 months, and the CAD system will not be utilized by the Bellevue Police Department until late in 2003. Mr. Henson's assumption that the records he requests could be accessed within a few minutes is completely inaccurate. While the Bellevue Police Department is semi-computerized, the search of the records that Mr. Henson requests is not nearly as simple as he imagines. As stated in my letter to Mr. Henson, there are additional pieces of information that could assist us in honoring his request.
Mr. Henson also makes the assumption that since we can destroy certain records after five years, that we do destroy those records after five years. That is also an incorrect assumption. Our department retains records for well beyond the time required by statute. 4 Honoring Mr. Henson's request, as he stated it in his letter, could require hundreds of man-hours.
Mr. Henson's requests could have been denied based on KRS 61.872(6), because his request, as written, places an unreasonable burden on the police department. However, I did not deny his request. I asked for some clarification, and suggested that he come here so that his request could be honored. I stand by that offer. As stated in the last sentence of my letter to Mr. Henson, we will still be happy to assist him.
Bellevue City Attorney Frank E. Warnock echoed this position in a letter directed to this office on July 9, 2003, emphasizing that "KRS 61.872(3)(b) states that a requesting party must 'precisely' describe the public records that he or she is requesting" if the party wishes to access those records by receipt of copies through the mail. On this basis, we affirm the Department's disposition of Mr. Henson's request.
As an experienced open records practitioner, Mr. Henson is well aware that KRS 61.872(3) imposes certain obligations on a person who wishes to access public records. 5 That statute provides:
A person may inspect the public records:
The Open Records Act thus 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. Mr. Henson has elected the latter mode of access. The Department does not object to providing Mr. Henson with copies of the requested records through the mail on the basis of Mr. Henson's county of residence or principal place of business, but instead asserts that the records requested are not precisely described. We find this argument highly persuasive.
As noted above, persons who wish to exercise their right of inspection by receipt of copies through the mail are required to "precisely describe [] the public records, " and those records must be "readily available within the public agency. " KRS 61.872(3)(b). Thus, KRS 61.872(3)(b) places a greater burden on persons who wish to receive copies by mail to describe "in definite, specific, and unequivocal terms" the desired records. 97-ORD-46, pp. 2, 3, see also 99-ORD-210. Persons who wish to conduct on-site inspection of public records need only "identify them with sufficient clarity to enable the public agency to locate and make them available." OAG 89-8, p. 4. Mr. Henson's request may have been sufficiently specific to satisfy the latter standard, but it is by no means sufficiently specific to satisfy the former standard. 6
In responding to Mr. Henson's original request, the Bellevue Police Department described the difficulties associated with locating and retrieving the records vaguely described in that request. The Department amplified upon these difficulties in its supplemental response to Mr. Henson's appeal. Although his letter of appeal contains additional identifiers, including the five year time frame and the fact that he wished to access incident/offense reports in which the individuals' names appear as complainant or suspect, his original request did not contain these identifiers. It is this request, and the agency's response thereto, that this office is mandated to review pursuant to KRS 61.880(2)(a) and to which we apply the requirements set forth in KRS 61.872(3)(b). Based on the requirement that a requester who wishes to access public records by receipt of copies through the mail provide a precise description of records which are readily available within the public agency, we find that Mr. Henson's request falls short of the requirement and affirm the Bellevue Police Department's denial of his request.
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
William ColeChief of PoliceCity of Bellevue Police Department 616 Poplar StreetBellevue, KY 41073
Frank WarnockCity Attorney of Bellevue616 Poplar StreetBellevue, KY 41073
Richard Belding, DirectorPublic Records DivisionDepartment for Libraries & Archives300 Coffee Tree RoadP.O. Box 537Frankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.8715 provides:
The General Assembly finds an essential relationship between the intent of this chapter and that of KRS 171.410 to 171.740, dealing with the management of public records, and of KRS 61.940 to 61.957, dealing with the coordination of strategic planning for computerized information systems in state government; and that to ensure the efficient administration of government and to provide accountability of government activities, public agencies are required to manage and maintain their records according to the requirements of these statutes. The General Assembly further recognizes that while all government agency records are public records for the purpose of their management, not all these records are required to be open to public access, as defined in this chapter, some being exempt under KRS 61.878.
2 In fact, the Local Government General Records Retention Schedule identifies the proper retention period for complaint/offense reports as three years at Series No. L4680. A copy of the relevant potion of that schedule, along with the Records Description and Analysis for the record, is attached hereto.
3 This is a common practice among public agencies and records applicants and one to which no legitimate objection can be made unless improperly employed by an agency to postpone records access. There is no evidence in the record before us that the Bellevue Police Department employed the practice improperly.
4 It is the Department's policy of maintaining public records "well beyond the time required" that raises the records management issues we have referred to the Department for Libraries and Archives pursuant to KRS 61.8715.
5 In the following open records appeals to which Mr. Henson was a party, the Attorney General found that the records Mr. Henson sought were described with sufficient precision or that the issue of the precision of the request was not raised by the responding public agency:
01-ORD-8: Mr. Henson requests five precisely described incident/offense reports identified by type (i.e., burglary report), date, and the person who reported the incident.
01-ORD-15: Mr. Henson requests three precisely described incident/offense reports.
01-ORD-111: Mr. Henson requests two precisely described incident/offense reports.
01-ORD-162: Mr. Henson requests incident/offense reports relating to three individuals. Responding agency objects to disclosure of records by mailing copies to Mr. Henson on the basis that he lives and works in the county in which the records are maintained, and that he can therefore be required to conduct on-site inspection as a precondition to receiving copies. At footnote 5, the Attorney General specifically noted, that the responding agency did "not argue that the requested records were not described with sufficient precision or that they [were] not readily available with the [agency]." (Copy attached.)
02-ORD-149: Mr. Henson requests two sets of records and his request is denied on the basis that the responding agency's computer search capability was disabled by a computer virus. Agency does not raise the issue of the precision of the request.
02-ORD-155: Mr. Henson requests two precisely described accident reports.
These decisions demonstrate that, in general, Mr. Henson is capable of framing a precise open records request and stand in contrast to the request that is the subject of the present appeal.
6 By way of example, in 01-ORD-8 Mr. Henson requested a copy of the "robbery report, reported by D.E.P.'s Liquor Outlet on August 15, 2000[.]" This request was "definite, specific, and unequivocal. "