Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the City of Winchester violated the Kentucky Open Records Act in denying the request of Debra M. Gallant to inspect and copy "all police records" generated by the investigation into the sexual assault of A. B., a minor child, on the basis of KRS 61.878(1)(h). More specifically, the City relied upon the section of KRS 61.878(1)(h) pursuant to which records or information compiled and maintained by Commonwealth's attorneys pertaining to criminal investigations remain exempt from the Open Records Act after enforcement action is completed, including litigation, or a decision is made to take no action. Because records of the type specifically requested, police records, are not included among those to which the General Assembly expressly afforded protection by virtue of KRS 61.878(1)(h), records maintained by county attorneys or Commonwealth's attorneys, the City violated the Open Records Act in denying Ms. Gallant's request on this basis. To hold otherwise would contravene the legislative mandates codified at KRS 61.871, providing that the exceptions of KRS 61.878 shall be strictly construed, and KRS 61.878(1)(h), providing that the exemptions of that subsection shall not be used to delay or impede the exercise of rights granted by the Open Records Act.
By letter dated February 17, 2005, Ed Burtner, City Manager, denied Ms. Gallant's request on behalf of the City, citing KRS 61.878(1)(h) as authority based upon the advice and counsel of William A. Dykeman, City Attorney. Attached to the City's response is a copy of this provision with the purportedly applicable language underlined. On March 9, 2005, Ms. Gallant initiated this appeal from the City's denial of her request, asking the Attorney General to order the City of Winchester and the Winchester Police Department to produce "all police files" regarding the sexual assault of A. B.
According to Ms. Gallant, the WPD "has closed the investigation and the Commonwealth Attorney's Office has decided not to prosecute." Given the "considerable physical and biological evidence of a crime," A. B. would like to exercise the civil remedies available to her. Without the requested files, A. B. will be unable to pursue this option. 1 To Ms. Gallant's knowledge, "there is no possibility that the police department will reopen the case or the Commonwealth Attorney will seek an indictment. " Citing the concluding sentence of KRS 61.878(1)(h), 2 Ms. Gallant reiterates that A. B. has the right to seek restitution for her injuries.
Upon receiving notification of Ms. Gallant's appeal from this office, Mr. Burtner elaborated upon the City's position. As observed by Mr. Burtner, the City's denial is based upon a strict reading of the following portion of KRS 61.878(1)(h):
. . . however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.
In addition, Mr. Burtner explains that a "criminal complaint has been presented to the Clark County Grand Jury, which refused to issue an indictment; nevertheless, the City is advised that the Commonwealth does not rule out the possibility of an additional witness coming forward to corroborate the charge made by the complainant, who is a minor." In Mr. Burtner's view, Ms. Gallant is drawing an inaccurate distinction between "Police Records" and those in the possession of the Commonwealth Attorney. "The records are one and the same." 3 Although the content of the records in dispute may largely mirror those in the custody of the Commonwealth's attorney, the fact remains that the General Assembly intended to afford protection to the latter, but not the former, as evidenced by the plain and unambiguous language of the second exemption codified at KRS 61.878(1)(h), mistakenly relied upon by the City.
When called upon to render a decision involving statutory interpretation, this office is 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, this office 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). Further, "it is neither the duty nor the prerogative of the judiciary [or this office] to breathe into the statute that which the Legislature has not put there."
Commonwealth of Kentucky v. Gaitherwright, Ky., 70 S.W.3d 411, 413 (2002), citing Gateway Construction Co., supra.
In a related vein, the Open Records Act contains the following directive codified at KRS 61.871:
The General Assembly finds and declares that the basic policy of KRS 61.870 to 61.884 is that free and open examination of public records is in the public interest and the exceptions provided for by KRS 61.878 or otherwise provided by law shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others. (Emphasis added).
Guided by these fundamental principles, this office concludes that police records or files do not fall within the parameters of the second exemption codified at KRS 61.878(1)(h), which "shall not be used by the custodian of records to delay or impede the exercise of rights granted by [the Open Records Act] ."
Among those records which are excluded from the application of the Open Records Act absent a court order by KRS 61.878 are those described at KRS 61.878(1)(h):
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by the subsection shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884. (Emphasis added).
As the City relies solely upon the italicized language, the outcome of this appeal turns on the application of this exemption. 4
Although neither party has cited nor has our research revealed any published authority which is directly on point, this office is not without guidance in resolving the narrow issue presented. In The Courier-Journal and Louisville Times Company v. Downey, No. 1999-CA-002466-MR at 12 (Ky. App. March 31, 2001), 5 the Kentucky Court of Appeals held that Franklin Circuit Court erred in finding the "Downey file" compiled by the Public Corruption Unit of the Office of the Attorney General exempt from disclosure pursuant to KRS 61.878(1)(h) since the Attorney General "is not mentioned or alluded to" by this provision. 6 Acknowledging that the trial court "was attempting to remedy what it perceived to be a legislative oversight in failing to include the Attorney General" within the scope of KRS 61.878(1)(h), the Court concluded that "even if the exclusion of the Attorney General came about as a result of legislative error, the judiciary is powerless to correct it by reading the Attorney General into the statute." Id. To the contrary:
The courts [or this office] may supply clerical or grammatical omissions in obscure phrases or language of a statute in order to give effect to the intention of the Legislature, presumed or ascertainable from the context, or to rescue the act from absurdity. But where a statute on its face is intelligible [as is the case here], the courts are not at liberty to supply words or insert something or make additions which amount, as sometimes stated, to providing for a casus omissus, or cure an omission, however just or desirable it might be to supply an omitted provision. It makes no difference that it appears the omission was mere oversight . . . . To insert or supply by construction the limitations contended for would be an act of legislation and not an act of judicial construction. The statute by construction cannot be extended or enlarged beyond its fair import. (Emphasis added).
Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248, 251 (1960) (citations omitted).
Likewise, police records are not mentioned in the exemption of KRS 61.878(1)(h) at issue, nor is this office empowered to cure such an omission by reading police records into this provision, even assuming for the sake of argument that the General Assembly intended to include police records among those to which protection is expressly afforded. Given the necessary implications of such an interpretation - impeding, if not eliminating, access to records of the type requested in a manner apparently not envisioned by the General Assembly, and rendering the first exemption of KRS 61.878(1)(h) meaningless, this argument is not persuasive.
"It is a cardinal rule of statutory construction that the enumeration of particular things excludes the idea of something else not mentioned."
Smith v. Wedding, Ky., 303 S.W.2d 322, 323 (1957). Contrary to the City's position, a literal interpretation of KRS 61.878(1)(h) does not encompass the records requested; it is a distinction with a difference. Had the General Assembly intended for police records to be included among those records to which the second exemption of KRS 61.878(1)(h) applies, it would have employed the requisite language, just as it did in the first exemption provided. Absent such language, no such intent can be presumed. Accordingly, the City erred in relying upon the second exemption of KRS 61.878(1)(h) as the basis for denying Ms. Gallant's request. When viewed in conjunction, the general principles of statutory construction, the mandate of strict construction codified at KRS 61.871, and the mandatory language of KRS 61.878(1)(h) demand this result.
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.
Debra Gallant2205 Kenwood DriveLexington, KY 40509-4128
Ed BurtnerCity ManagerCity of WinchesterP.O. Box 40Winchester, KY 40392-0040
William A. DykemanCity AttorneyCity of WinchesterP.O. Box 910Winchester, KY 40392-0910
Footnotes
Footnotes
1 While Ms. Gallant's dilemma is certainly compelling, neither the requester's identity nor his or her purpose in requesting access to records is generally relevant to the analysis employed by this office in resolving appeals filed pursuant to the Open Records Act.
2 In relevant part, KRS 61.878(1)(h) provides:
The exemptions provided by this subsection shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to KRS 61.884[.]
3 Although Mr. Burtner was surprised to learn from Ms. Gallant's appeal that she formed an "understanding" as to the applicability of KRS 61.878(1)(h) in this context since the City was not afforded the opportunity to participate in this "consultation," this office receives numerous and varied telephone inquiries from both the general public and public officials regarding application of the Open Records Act on a regular basis; responding to such inquiries - providing general information and procedural advice - is a service which this office provides in connection with its statutory function to resolve disputes concerning access to public records. However, the attorney to whom a pending appeal is assigned does not engage in ex parte communications regarding the merits with either party due to the adjudicatory role of the Attorney General in issuing Open Records Decisions, nor does this office engage in speculation as to the outcome of a hypothetical, and this case is no exception to the rule of neutrality. To the contrary, Ms. Gallant spoke with another attorney regarding this matter prior to filing her appeal during the normal course of business, so Mr. Burtner's concern is unwarranted.
4 See 00-ORD-181 for the analysis employed by this office in determining whether a public agency has successfully invoked the first exemption of KRS 61.878(1)(h), which the City has not attempted to do here. Because the City did not invoke the "privacy exemption, " KRS 61.878(1)(a), this office does not address any related issues.
5 Although The Courier-Journal and Louisville Times Co. v. Downey is an unpublished opinion which "shall not be cited or used as authority in any other case in any court of this state" pursuant to Rules of Civil Procedure (CR) 76.28(4)(c), the analysis presumably reflects both the current position of the Court unless and until a contrary opinion is published, and the view which the Court might subsequently adopt in a published opinion on the matter.
6 In addition, the Court found that the purpose of the Open Records Act would be defeated if the investigatory files of the OAG were read into the exemption provided by KRS 61.878(1)(h), so a rational basis exists for the exclusion of the OAG from this provision. Id. at 17. In other words, KRS 61.878(1)(h) passes constitutional muster.