Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying the request of Michael Lucas for "full and complete copies of all materials contained within the file on Mr. [Wesley E.] Boyd and the concealed weapons permit/license that has been issued unto him whether that [is] test scores, training materials, or the license itself and/or renewals of the same." Because any identifying information relating to concealed deadly weapon license holders other than a list naming all CCDW license holders (in hard copy format only) is exempt from disclosure pursuant to KRS 237.110(8), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 the KSP properly relied upon KRS 237.110(8) in denying the subject request.
By letter dated March 9, 2004, Terry Edwards, Official Custodian of Records for the KSP, declined to provide Mr. Lucas with copies of the requested records, advising him, in relevant part, as follows:
In response to your request for information concerning [CCDW] licensee [] information pertaining to a particular individual your correspondence asserts holds a Kentucky [CCDW] permit, please be advised that such information is deemed confidential pursuant to KRS 237.110(8). The only information which can be released under this statute is a complete list of names (hard copy format only) of all [CCDW] holders in this Commonwealth. Other than licensee names, all other information possessed by KSP is confidential. 2
On appeal, Mr. Lucas does "not deny the language of KRS 237.110(8)," arguing instead "that same is unnecessary and that the requested material should constitute public records. " As explained by Mr. Lucas:
My involvement in this matter is in a civil action involving a wrongful death claim wherein Mr. Boyd is named as a party defendant. I have requested the hard copy referenced in the letter of March 9, 2004 but do not feel that the material will adequately address the issues which I am pursuing [on] behalf of the estate of Verna Maggard, my client[,] as well as that of her spouse.
In a supplemental response directed to this office following commencement of the instant appeal, Roger Wright, a KSP staff attorney, elaborates on the position of the KSP. As correctly observed by Mr. Wright:
In his Appeal, Lucas concedes that the plain language of KRS 237.110(8) prohibits the release of the information he seeks, but he argues that such prohibition on the release of ccdw licensee information is unnecessary. "It is elementary that the legislative branch of government has the prerogative of declaring public policy and that the mere wisdom of its choice in that respect is not subject to the judgment of a court." Leadingham v. Smith, Ky. App., 56 S.W.3d 420, 428 (2001). Accordingly, to the extent this Appeal questions the necessity of the statutory prohibition on the release of ccdw licensee information it must fail.
Lucas further argues that he has a heightened need for the information he seeks due to his involvement as counsel in civil litigation involving the individual he asserts possesses a ccdw license. The Attorney General has consistently held that the identity of the person making an Open Records request is irrelevant. See e.g., OAG 91-129. Lucas, therefore, has no greater right of access under the Open Records Act to ccdw licensee information than any other requester in spite of his asserted special need for such information. This Appeal should be denied.
In short, Mr. Wright is correct on both counts.
Pursuant to KRS 237.110(8):
The Department of State 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, 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 this information. The Department of State Police shall, upon proper application and 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. 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. The fee to be charged shall be the same as for other public records provided by the Department of State Police. No request for lists of local or statewide permit holders shall be made to any state or local law enforcement agency, peace officer, or other agency of government other than the Department of State Police, and no state or local law enforcement agency, peace officer, or agency of government, other than the Department of State Police, shall provide any information not entitled to it by law. The names of all persons, other than law enforcement agencies and peace officers, requesting information under this section shall be a public record. (Emphasis added).
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 v. University of Kentucky, Ky., 939 S.W.2d 340, 345 (1997). Guided by these principles, we conclude that KRS 237.110(8) prohibits release of the records requested by Mr. Lucas.
Recently, the Attorney General addressed a similar but narrower issue, the resolution of which necessarily disposes of the broader issue presented in this appeal. In 03-ORD-222, this office was asked to resolve the conflict between KRS 61.874(2)(a), which authorizes a party requesting records to designate a preference as between standard electronic and standard hard copy format, and KRS 237.110(8), which, as indicated, specifies that the KSP can provide the list naming all CCDW license holders "in hard copy form only," an issue of first impression. Applying fundamental principles of statutory construction, 3 we concluded that the two statutes were in "irreconcilable conflict, " and, therefore, KRS 237.110(8), the "subsequent and specific statute, " was controlling. Id., p. 5. Relevant for present purposes, we engaged in the following analysis:
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:
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 [] to be inherently confidential and, therefore, restricted its disclosure to "hard copy form only." In order to effectuate the intent 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.
Id., pp. 4, 5. (Emphasis added).
To the extent applicable, this reasoning is equally dispositive here. If the list of names is "inherently confidential, " it stands to reason that any identifying information relating to a specific license holder is also confidential as mandated by the literal language of this provision. Mr. Lucas concedes as much. In arguing that KRS 237.110(8) is "unnecessary," Mr. Lucas further acknowledges the effect of its application, albeit implicitly. Although the requested information "should constitute public records" in his view, this office is not "'empowered to rewrite statutes to suit [its] notion of sound public policy when the General Assembly has clearly and unambiguously established a different notion.'" Leadingham, supra, at 429 (citation omitted). By its express terms, KRS 237.110(8) characterizes the requested information as confidential and it is not our function to question the wisdom of this legislative mandate.
Equally unsuccessful is the argument that Mr. Lucas is somehow entitled to access the requested records despite the mandatory language of KRS 237.110(8) by virtue of his involvement in a civil action in which Mr. Boyd is named as a defendant. As consistently recognized by this office, "[t]he purpose for which a person seeks access to a public record is not relevant to the Open Records Law. A public agency has no right to inquire as to the purpose for the inspection and copying of the record." OAG 91-129, p. 1; OAG 82-234. See also OAG 89-86; OAG 89-79; OAG 86-36; OAG 85-120; OAG 84-93. Pursuant to KRS 61.872(2): "Any person shall have the right to inspect public records" and the official custodian may require a written application describing the records requested. Id. However, an agency "cannot require a requesting party to state his purpose in making a request, nor can it, as a matter of policy, allow inspection and copying of records for certain purposes and deny it for other purposes." Id. To the contrary:
'It is the content of the record itself which makes it either mandatorily accessible to public inspection and copying or exempt from the mandatory requirement.' OAG 82-394, p. 3. As a corollary of this proposition, the Office of the Attorney General has consistently held that the identity of the person making the request is irrelevant. '[U]nder the Open Records Law all persons have the same standing to inspect public records. . . .'
Id.
In conclusion, KRS 237.110(8) explicitly prohibits release of the requested records and applies to Mr. Lucas, regardless of his identity or purpose in requesting the records at issue. Accordingly, the KSP properly relied upon KRS 237.110(8) in denying the subject request. Because its response was otherwise consistent with both the Open Records Act and related authorities, we affirm its denial.
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 proceedings.
Michael Lucas131 Division StreetP.O. Box 852Pikeville, KY 41502
Terry D. EdwardsOfficial Custodian of RecordsLegal BranchKentucky State Police919 Versailles RoadFrankfort, KY 40601
Roger WrightKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 Pursuant to KRS 61.878(1)(l): Among those records excluded from the application of KRS 61.870 to 61.884 are "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
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2 Upon receiving the denial of his request, Mr. Lucas submitted a request dated March 16, 2004, to Mr. Edwards "for the list of names ( hard copy format only) referenced" therein and indicated that he would provide "the reasonable duplication costs" in advance if necessary. Since Mr. Edwards correctly observed that a requester is entitled to such a list under KRS 237.110(8), we assume that he will provide Mr. Lucas with a copy of the requested list upon receiving advance payment of the prescribed fee, including postage, in accordance with KRS 61.874(1).
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3 In addition to those already cited, our analysis wasguided by the following principles which are not applicable here:
The General Assembly "is presumed to be aware of the existing law at the time of enactment of a later statute." Accordingly, "if two statutes involving the same subject matter are in irreconcilable conflict, the later statute controls." 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." (Internal citations omitted).
O3-ORD-222, p. 4.
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