Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Frankfort violated the Open Records Act in the disposition of Frederick L. Williams, Jr.'s, request for "copies of Officer Darrell Tracy['s] initial accident report not submitted, all of his notes including both statements from the drivers at the scene of the accident, and copies of all tapes and recordings. " 1 Although it is apparently Mr. Williams' belief that the initial report prepared by Officer Tracy was altered sometime after the collision, this issue does not arise under the Open Records Act. We find no violation of the Open Records Act and therefore affirm the City's disposition of Mr. Williams' request.
The City of Frankfort responded to Mr. Williams request by releasing "all documents responsive to his open records request concerning the collision. " In light of Mr. Williams' belief that additional records should exist, 2 and unable to resolve the open records issues this appeal presents, the Attorney General propounded a series of questions to the City of Frankfort pursuant to KRS 61.880(2)(c) 3 on October 24, 2006. Our questions, and the City's responses, follow:
1) Please describe all records that were released to Mr. Williams.
The accident report prepared by Officer Darrell Tracy, a letter dated June 26, 2006 forwarded by Major Fred Deaton to Mr. Williams, and a letter dated July 14, 2006 forwarded by Major Fred Deaton to Mr. Williams were provided to Mr. Williams in response to his Open Records Request.
2) Did Officer Tracy prepare a preliminary accident report that differs from the final accident report that was released to Mr. Williams?
No, Officer Tracy did not prepare a preliminary accident report. The accident report was prepared by Officer Tracy at the accident scene and sent electronically to the Kentucky State Police, Kentucky Open Portal Solution through Officer Tracy's mobile data terminal. The Kentucky State Police Office then transmits the accident report to the officer's supervisor to review. The accident report is reviewed for correctness of administrative data, spelling and grammar and completeness. The supervisors do not reverse an officer's conclusions set forth in the accident report. Officer Tracy's supervisor may have required him to correct grammatical errors in the accident report.
3) Did Officer Tracy take written notes or reduce the parties' statements to writing at the scene of the collision or after the collision? If so, do these notes still exist?
Officer Tracy did not take written notes or reduce the parties' statements to writing other than in the accident report. However, Officer Tracy did type the parties' administrative information in his [mobile data terminal] before transferring it to the accident report. [A] copy of the pages concerning this administrative information [are enclosed] for . . . review, but [the City maintains that these records are] exempt from disclosure as a preliminary draft or note pursuant to KRS 61.878(1)(i).
4) Did Officer Tracy make any recordings at the scene of the collision or after the accident?
Officer Tracy did not make any recordings at the scene of the collision or after the collision.
This information substantiates the City's position that all nonexempt responsive records were disclosed to Mr. Williams, and that its actions were entirely consistent with the Open Records Act.
The City of Frankfort's decision to disclose all nonexempt records responsive to Mr. Williams' request, as well as its decision to withhold records for which statutory protection exists, is consistent with the mandate of the Open Records Act, set forth at KRS 61.872(1) and declaring that "[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884," as well as the Act's underlying policy, set forth at KRS 61.871 and declaring that "free and open examination of public records is in the public interest . . . ." The City fully discharged its statutory duty by providing Mr. Williams with copies of records to which the law entitled him, 4 and we therefore find no error in its conduct.
Moreover, we find no error in its decision to withhold preliminary drafts and notes prepared by Officer Tracy, at the scene of the collision, on the basis of KRS 61.878(1)(i). That exception authorizes public agencies to withhold "[p]reliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency [.]" In construing this provision, the Attorney General has opined:
Not every paper in the office of a public agency is a public record subject to public inspection. Many papers are simply work papers which are exempted because they are preliminary drafts and notes. KRS 61.878(1)(i). Yellow pads can be filled with outlines, notes, drafts and doodlings which are unceremoniously thrown in the wastebasket or which may in certain cases be kept in a desk drawer for future reference. Such preliminary drafts and notes and preliminary memoranda are part of the tools which a public employee or officer uses in hammering out official action within the function of his office.
OAG 78-626, p. 2. In a more recent decision, this office dissected the language of the exemption:
The term draft is defined as "a preliminary outline, plan, or version." Webster's II New Riverside University Dictionary, 402 (1988). The term note is defined as "a brief record, especially one written down to aid the memory. . . ." [A note is] created as an aid to memory or as the basis for a fuller statement, as are, for example, written or short-hand notes taken at a meeting. OAG 79-333; OAG 88-32; 93-ORD-67. (KRS 61.878(1)(i) is "intended to protect random notations made by individuals present at a meeting"). [A draft is] a tentative version, sketch, or outline of a formal and final written product such as the draft reports dealt with in OAG 89-34, 93-ORD-125, and 94-ORD-38.
97-ORD-183, p. 4. Resolution of this appeal turns on the issue of whether the records withheld qualify for exclusion from public inspection as preliminary drafts or notes.
We find that the disputed records can properly be characterized as preliminary drafts and/or notes inasmuch as they represent nothing more than a tentative version, sketch, or outline of the formal and final accident report, 5 and/or a record written down as an aid to memory. The disputed records are in the nature of the tools used in hammering out official action rather than the official action itself. OAG 79-333; OAG 88-32; 93-ORD-67.
The City of Frankfort's assertion that no additional responsive records exist, and that therefore none can be provided, is consistent with the rule of law set forth in a line of decisions dating from the enactment of the Open Records Act and premised on the notion that an agency cannot provide access to records that do not exist. OAG 83-111; OAG 91-112; 97-ORD-17; 00-ORD-120; 02-ORD-188. Further, the Attorney General has long recognized that "it is not our duty to investigate in order to locate documents when an agency asserts that they do not exist." 02-ORD-188, p. 2. At page 5 of OAG 86-35, we observed, "This office is a reviewer of the course of action taken by a public agency and not a finder of documents . . . for the party seeking to inspect such documents." Although there are occasions when, under the mandate of KRS 61.8715, 6 the Attorney General requests that a public agency substantiate its denial by demonstrating what efforts were made to locate a responsive record or explaining why no record was generated, the facts of this appeal do not warrant additional inquiry. Simply put, Officer Tracy did not prepare a preliminary accident report, did not take written notes or reduce the parties' statements to writing, and did not make any recordings at the scene of the collision or at any point thereafter. The dispute before us is therefore factual, and not legal, in nature.
With reference to such factual disputes, this office has repeatedly acknowledged that it "cannot . . .adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." OAG 89-81, p. 3. We are constrained to adhere to this view in the appeal now before us. Accordingly, we find that the City of Frankfort did not violate the Open Records Act in the disposition of Mr. Williams' 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.
Footnotes
Footnotes
1 Mr. Williams' request relates to an accident that occurred on May 18, 2006, on Georgetown Road, involving Mr. Williams and another individual Mr. Williams identified by name.
2 Mr. Williams speculates that these records may consist of an "initial" report prepared by Officer Tracy, statements made by the drivers at the scene of the collision, tapes, and recordings.
3 KRS 61.880(2)(c) provides, in relevant part:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
4 Pursuant to KRS 189.635(5):
All accident reports filed with the Department of State Police . . . shall remain confidential . . . . These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is a party to the accident, and the insurers of any party who is the subject of the report, or to the Attorneys of the parties.
Pursuant to Subsection (6) of KRS 189.635, accident reports must also be "made available to newsgathering organizations, solely for the purpose of publishing or broadcasting the news." As a "party to the accident," Mr. Williams was entitled to a copy of his accident report, but the general public has no such entitlement.
5 See, e.g., OAG 89-34; 93-ORD-125; 94-ORD-38.
6 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 11.501 to 11.517, 45.253, 171.420, 186A.040, 186A.285, and 194A.146, 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.
(Emphasis added.)