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 Kentucky State Police violated the Open Records Act in the disposition of Tom E. Springer's July 2, 2003 request for copies of "all Uniform Accident Reports in the Madisonville Post from June 1, 2003, up to and including July 3, 2003." For the reasons that follow, we find that KSP 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 Mr. Springer's request.
By letter dated July 8, 2003, KSP Records Custodian Diane H. Smith denied Mr. Springer's request, explaining:
The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to a particular provision. KRS 189.635(5) makes accident reports confidential except that they may be released to the parties to the accident, their attorneys or insurers, or a parent or guardian if the party is a minor. Therefore, because you do not represent a party to the random accident reports, the Kentucky State Police must deny your request.
Shortly thereafter, Mr. Springer initiated this open records appeal, arguing that although "KRS 189.635(5) does appear to limit parties entitled to this request[,] when this subsection is juxtaposed against the well-trodden paths of precedent, it becomes clear such limited entitlement is unconstitutional." In support he cited OAG 89-76 for the proposition that "such documents are not confidential. "
In supplemental correspondence direct to this office following commencement of Mr. Springer's request, KSP Legal Counsel James M. Herrick amplified on the agency's position. Reaffirming KSP's reliance on KRS 189.635(5), he observed:
These reports may be provided only to certain specified persons, and Mr. Springer does not fall into one of the categories of persons enumerated in the statute.
The citation of OAG 89-76 cannot be controlling on this point, as the relevant subsections of KRS 189.635 (subsections 5 and 6) were not enacted until 1994. The constitutionality of these provisions was upheld in Amelkin v. McClure, 330 F.3d 822 (6th Cir. 2003), and previously in Amelkin v. McClure, 205 F.3d 293 (6th Cir. 2000).
We agree.
KSP properly denied Mr. Springer's request for all accident reports filed at the Madisonville Post from June 1, 2003 through July 3, 2003 on the basis of KRS 189.635(5). 1 That statute 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). In June 2001, the federal district court eliminated any lingering question as to the effect of the 1996 injunctions by issuing an order dissolving "all injunctions previously entered in this case." That court subsequently granted summary judgment in favor of the defendant state officials and determined that KRS 189.635 did not abridge the plaintiffs' constitutional rights.
Amelkin v. McClure, 178 F.Supp. 766 (W.D. Ky. 2001). On June 2, 2003, the Sixth Circuit affirmed the judgment of the district court.
Amelkin v. McClure, 330 F.3d 822 (6th Cir. 2003).
We find that KSP properly relied on KRS 189.635(5) as the basis for denying Mr. Springer' request for accident reports filed at the Madisonville Post for the specified period of time inasmuch as he was not a party to the accidents, the parent or guardian of a minor who was a party to the accidents, the insurer of any party who is the subject of any of the reports, the attorney for one of the parties, or a representative of a news-gathering organization seeking disclosure "solely for the purpose of publishing or broadcasting the news." KRS 189.635(6); compare, 02-ORD-19 (recognizing news-gathering organizations' right of access to accident reports). The specific confidentiality provision found at KRS 189.635 overrides the general role of openness mandated by the Open Records Act. Accord, 01-ORD-127 (attorney representing Accident Injury Medical Centers not entitled to obtain copies of 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.
Tom Springer28 Court StreetMadisonville, KY 42431
James M. Herrick, Legal CounselKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 To the extent that Mr. Springer's request was, in part, a request for records not yet generated, it was deficient. The Attorney General has consistently taken the position that the Open Records Act governs access to existing public records and that standing requests for records not yet generated need not be honored. See, e.g., 99-ORD-110 and authorities cited therein.