Opinion
Opinion By: Albert B. Chandler III, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police properly denied the September 22, 2003, request of Andrew Tangel, a staff writer for The State Journal, for "a list-in electronic format-of all Kentuckians holding permits to carry concealed weapons. " More precisely, we are asked to resolve the conflict between KRS 61.874(2)(a), 1 which authorizes a party requesting records to designate a preference as between standard electronic and standard hard copy format, and KRS 237.110(8), 2 which specifies that the KSP can provide the requested list "in hard copy form only," an issue of first impression.
By letter dated September 24, 2003, Terry Edwards, Official Custodian of Records for the KSP, declined to provide Mr. Tangel with the requested information in electronic format, advising him as follows:
KRS 61.878(1)(l) exempts from the Open Records Law records made confidential by enactment of the General Assembly. Pursuant to KRS 237.110(8), information on CCDW license holders is confidential except that a list of names may be provided "in hard copy form only" upon written request to the State Police Commissioner "and the payment of the required fee." Accordingly, we cannot provide this information in electronic form.
As further explained by Mr. Edwards:
If you wish to obtain this information in hard copy form, please submit another request. Fees are calculated at 10 cents per page. Since the size of the CCDW list is constantly changing, it is not possible to state the exact amount of the fee until a list has been printed. Our office has been informed that recently printed lists have run to approximately 400 pages. It takes about two days to obtain a printout, as the State Police must request this from the Governor's Office of Technology. Please advise if you wish to have a list printed, and we will subsequently advise you of the applicable fee.
By enacting KRS 237.110(8), the more specific of the two conflicting provisions implicated here, the General Assembly expressly restricted disclosure of the public records requested by Mr. Tangel to "hard copy form only." KRS 61.878(1)(l) exempts from disclosure "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." Because we conclude that the KSP responded in the manner dictated by KRS 237.110(8), and its actions were otherwise consistent with the Open Records Act, we affirm its denial of Mr. Tangel's request to produce the requested list of names in electronic format.
On appeal, Mr. Tangel acknowledges the KSP's offer to provide a hard copy of the list but argues that "the unwieldy task of sifting through approximately 80,000 names spanning more than 400 pages would hinder" the ability of The State Journal "to search the voluminous roster." According to Mr. Tangel, this would constitute "an unjustifiable encumbrance to free and open inquiry into public records that is violative of the spirit of Kentucky's Open Records Law."
In a supplemental response directed to this office following commencement of the present appeal, Roger Wright, a KSP staff attorney, framed the dispositive issue as:
whether a requester's ability to designate its preference for receipt of records in electronic format under KRS 61.874(2)(a) trumps the plain language of KRS 237.110(8) which provides that the list of names of concealed weapons licensees may only be provided in hard copy format, and that such records are otherwise confidential.
Citing Destock No. 14, Inc. v. Logsdon, Ky., 993 S.W.2d 952 (1999) and Withers v. University of Kentucky, Ky., 939 S.W.2d 340 (1997), Mr. Wright correctly observes that when two statutes concern the same or similar subject matter, the specific prevails over the general. In his view, the General Assembly intended "through its later 3 enactment of KRS 237.110(8) that an electronic list of names of concealed weapons licensees be excluded from the purview of the Open Records Act. " Likewise, "the General Assembly clearly intended to preserve its ability to restrict access to certain records" with the enactment of KRS 61.878(1)(l) and the General Assembly is vested with the authority "to establish such public policy." In summary, Mr. Wright contends that KRS 237.110(8) "is a valid enactment of the General Assembly that places minimal restrictions on the ability of a requester to obtain a list of names of concealed licensees, " and, since Mr. Tangel has "no common law right to receive the information" he requests in any particular format, we should affirm the KSP's disposition of his request. For the reasons that follow, we must agree.
When called upon to render a decision involving statutory interpretation, we are required "to ascertain and give effect to the intent of the General Assembly." Beckham v. Board of Education of Jefferson County, Ky., 873 S.W.2d 575, 577 (1994), citing Gateway Construction Co. v. Wallbaum, Ky., 356 S.W.2d 247 (1962). "We are not at liberty to add or subtract from the legislative enactment nor discover meaning not reasonably ascertainable from the language used." Id. To determine legislative intent, we must refer to the literal language of the statute as enacted rather than surmising what may have been intended but was not articulated. Stogner v. Commonwealth, Ky. App., 35 S.W.3d 831, 835 (2000). In so doing, we "must construe all words and phrases according to the common and approved uses of language." Withers, supra, at 345.
As previously indicated, when two statutes concern the same or similar subject matter, the specific shall prevail over the general. Stogner, supra, at 835, 02-ORD-19. The General Assembly "is presumed to be aware of the existing law at the time of enactment of a later statute." Id. Accordingly, "if two statutes involving the same subject matter are in irreconcilable conflict, the later statute controls." DeStock, supra, at 958. Of particular relevance here, "'when a later-enacted and more specific statute conflicts with an earlier-enacted and more general statute, the subsequent and specific statute will control.'" Stogner, supra, at 835, citing Commonwealth v. Brasher, Ky. App., 842 S.W.2d 535, 536 (1992). Guided by these fundamental principles, we now address the issue of whether KRS 237.110(8) "trumps" KRS 61.874(2)(a).
Pursuant to KRS 61.872(1): "All public records shall be open for inspection by any person, . . ." subject to the exceptions codified at KRS 61.878. Included among those public records explicitly exempted from application of the Open Records Act under that provision are "[a]ll public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l). It is noteworthy that the language in KRS 237.110(8) authorizing release of the list at issue is preceded by the following:
. . . . Except as provided in this subsection, information on applications for licenses, names and addresses, or other identifying information relating to license holders shall be confidential and shall not be made available except to law enforcement agencies.
Consistent with the foregoing, the language specifying the conditions under which this otherwise confidential information can be released, i.e., "upon application and payment of the required fee" in "hard copy form only," is followed by this qualification: "No identifying information other than the name shall be provided, and information for geographic areas or other subdivisions of any type from the list shall not be provided and shall be confidential. "
As evidenced by this unambiguous language, the General Assembly deemed the list of names requested by Mr. Tangel to be inherently confidential and, therefore, restricted its disclosure to "hard copy form only." In order to effectuate the intent 4 of the General Assembly, we must view the mandatory terms of KRS 237.110(8) in conjunction with KRS 61.878(1)(l), pursuant to which the General Assembly explicitly reserved the right to impose such restrictions on access to public records otherwise subject to inspection. In light of this determination, the question becomes which statute prevails as between KRS 237.110(8) and KRS 61.874(2)(a). Because the General Assembly is presumed to have been aware of the existence of KRS 61.874(2)(a) at the time it enacted KRS 237.110(8), and these two statutes are in "irreconcilable conflict, " KRS 237.110(8), the "subsequent and specific statute, " is controlling. Accordingly, the KSP properly denied Mr. Tangel's request to provide the list in electronic format and correctly advised him on how to proceed under KRS 61.874 thereby fulfilling its obligation under the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an 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.
Footnotes
Footnotes
1 Pursuant toKRS 61.874(2)(a):
Nonexempt public records used for noncommercial purposes shall be available for copying in either standard electronic or standard hard copy format, as designated by the party requesting the records, where the agency currently maintains the records in electronic format. Nonexempt public records used for noncommercial purposes shall be copied in standard hard copy format where agencies currently maintain records in hard copy format. Agencies are not required to convert hard copy format records to electronic formats.
2 KRS 237.110(8) provides:
The Department of Police shall maintain an automated listing of license holders and pertinent information, and this information shall be available on-line, upon request, at all times to all Kentucky law enforcement agencies. Except as provided in this subsection, information on applications for licenses, names and addresses, or other identifying information relating to license holders shall be confidential and shall not be made available except to law enforcement agencies. Requests for information to be provided to any requester other than a bona fide law enforcement agency which has direct access to the Law Enforcement Information Network of Kentucky shall be made, in writing, directly to the commissioner of the Department of State Police, together with the fee required for the providing of the information. The Department of State Police shall, upon proper application and the payment of the required fee, provide to the requester in hard copy form only, a list of names of all holders in the Commonwealth of a license to carry a concealed deadly weapon. (Emphasis supplied).
3 KRS 61.874(2)(a) became effective on July 15, 1994, while the current version of KRS 237.110(8) became effective on July 14, 2000.
4 Although the General Assembly has not elaborated as to the rationale behind this restriction, our function is to "ascertain and give effect to the intent of the General Assembly" as reflected by the wording of the statute.