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 Kentucky State Police violated the Open Records Act, within the meaning of KRS 61.880(2)(a), in the disposition of Cincinnati Enquirer staff writer Gregory Korte's February 27, 2007, 1 request for a complete dump of the Collision Report Analysis for Safer Highways (CRASH) database for all years available. For the reasons that follow, we find that KSP violated the Act by redacting information from the CRASH database without express legal authority, and that even if partial redactions were permissible, KSP improperly attempted to impose the cost of redaction on the requester.
By letter dated March 6, 2007, KSP's Official Custodian of Records Mary Ann Scott notified Mr. Korte that the requested data would be provided to him "as secured text file extracts. " Continuing, she observed:
It shall be your or office's responsibility to write an import file which can be saved to an Oracle database or Sequel or Access database. Personal identifying information (home addresses, DOB's, etc.) will not be provided in compliance with KRS 61.878(1)(a).
Ms. Scott advised that the total cost for reproduction and postage was $ 28.20, and that this cost included 8 CDs at $ 3.00 per CD and $ 4.20 postage.
On April 23, 2007, Mr. Korte mailed a check for $ 28.20 to KSP, but expressed his intent to appeal the partial denial of his request to this office. Mr. Korte later did so, 2 arguing that "[t]he standard under the law is whether the release of information constitutes 'a clearly unwarranted invasion of privacy.'" He elaborated:
From a public safety standpoint, the ages of drivers involved in traffic crashes are by no means irrelevant . . . . Kentucky has recently adopted legislation implementing license restrictions for drivers under 20. Elderly drivers also present a thorny public policy dilemma. And the ages of passengers, too, are often relevant for statistical purpose - for example, the Enquirer's recent package on school bus safety.
. . .
Clearly, this data would allow the public to judge the effectiveness of an important part of the mission of the Kentucky State Police - to minimize accidents by teen drivers.
Addresses of drivers are also important to help determine the distance of the driver from home, an important factor in automobile crashes. It can also suggest some important demographic clues for a statistical study of public health phenomena.
Further, an "address" field, as such, does not exist in most databases. Rather, addresses are often broken down into street number, street name, street suffix, city, state, and ZIP. Often, state data also includes the county. Clearly, street level data could be redacted while still allowing cities, ZIP codes, and counties to be revealed for statistical purposes.
In closing, Mr. Korte emphasized that "where a question of personal privacy arises, the burden is on the agency to show that release of personal information is 'clearly unwarranted.'"
In supplemental correspondence directed to this office following commencement of Mr. Korte's appeal, Ms. Scott amplified on KSP's position. Noting certain inconsistencies in Mr. Korte's response relative to protected data, she observed:
While Mr. Korte's appeal states that "addresses of drivers . . . suggest some important demographic clues for statistical study of public health phenomena," he also implies in his appeal that he may be satisfied with the disclosure of only cities/counties when he says "street-level data could be redacted while still allowing cities, zip codes and counties to be revealed for statistical purposes." As to birthdates, there is no compelling need, statistical or otherwise, for him to obtain birth days/months. Birth years would fulfill his need for demographic analyses.
Since receiving Mr. Korte's appeal, I've consulted with Ms. Pratt about revising the extracts to suit Korte's needs. She advised that the extracts are built in only two formats: (a) an extract that includes full disclosure of personal information, including complete addresses and birth dates, and; (2) an extract that excludes full addresses and birth dates including the year. Ms. Pratt advised that new extracts would have to be built in order to include the towns (but not the street address) and the birth years (but not the days/months). The cost for building new extracts is $ 10,000.
In closing, Ms. Scott proposed "a less expensive alternative" that might be acceptable to Mr. Korte, suggesting that Ms. Pratt "furnish statistical information to him while preserving the confidentiality of individuals in the cities/counties [he] wishes to analyze." While this was a laudable conciliatory gesture, we do not believe it satisfies KSP's statutory duties under KRS 189.635(6) or the Kentucky Open Records Act.
In 02-ORD-19, this office determined that a law enforcement agency, in that case the Lexington-Fayette Urban County Government, improperly denied a newsgathering organization access to portions of accident reports containing information of a personal nature pursuant to KRS 61.878(1)(a). There we noted that "[b]ecause KRS 189.635(6) places no restriction on the information in the accident reports that must be disclosed to newsgathering organizations, limiting only the use to which the information may be put," these organizations were entitled to full access to the reports. Bearing in mind that "CRASH consists of a relational database containing information that is on the traffic collision report . . . and a database containing images of the traffic collision reports," 3 we believe the analysis set forth at pages 3 through 5 of 02-ORD-19 is directly relevant as it relates to KRS 189.635(5) and (6), which provide:
(Emphasis added.) These provisions place an affirmative duty on law enforcement agencies that maintain accident reports to make those reports available to the individuals or entities identified therein without restriction. The only restriction that appears in the statute is the restriction imposed on newsgathering organizations from using or distributing the reports, or knowingly allowing their use or distribution, for a commercial purpose. We do not believe that the language upon which the Division of Police relies can be construed as a grant of authority to engraft the exception to public inspection codified at KRS 61.878(1)(a). KRS 189.635(5) and (6) mandate unrestricted access by the named individuals or entities to accident reports, and we therefore cannot be drawn into the balancing of interests analysis established by the courts in Board of Examiners, above, and Zink, above, relative to the proper invocation of KRS 61.878(1)(a).
Moreover, KRS 189.635 is a specific statute mandating disclosure of accident reports in the custody of law enforcement agencies required to file reports with the Department of State Police to named individuals and entities, and governs over the general statute relating to access to all public records in the custody of public agencies codified at KRS 61.870 et seq. Because KRS 61.878(1)(a) is a residual and general statute, it cannot be said to apply where a specific statute exists requiring disclosure. Employing the rule of statutory construction that the specific statute prevails over the general statute, we conclude that the Division's reliance on KRS 61.878(1)(a) was misplaced.
City of Bowling Green v. Board of Education of Bowling Green Independent School District, Ky., 443 S.W.2d 243 (1969); 99-ORD-102 (KRS 197.025(7) extends deadline for state penal institution response to open records request from three to five business days and is a specific statute that prevails over general statute governing agency response codified at KRS 61.880(1)); 00-ORD-110 (KRS 64.012 establishes fees for copies of certain records furnished by county clerk and is a specific statute that prevails over general statute governing copying charges codified at KRS 61.874).
At page 5 of 02-ORD-19, this office recognized that KRS 189.635(6) "appears . . . to evince . . . [a] legislative commitment to protecting personal privacy," and went so far as to suggest that "[i]f it is the legislative will that protection be extended to parties involved in vehicular accidents, the legislature may wish to amend KRS 189.635(6) in such a way as to permit law enforcement agencies to withhold personal information consisting of home address and telephone number, social security number, date of birth, driver's license number, and insurance information." Nevertheless, we concluded "[u]ntil it does so, we are bound to observe the express language of KRS 189.635(5) and (6)" requiring full disclosure of accident reports, and, by extension, the CRASH database, to the named individuals or entities, including "newsgathering organizations solely for the purpose of publishing or broadcasting the news." Id. In the absence of a published opinion of the Kentucky Court of Appeals or Supreme Court repudiating this position, we will continue to adhere to the position reflected in 02-ORD-19. Accord, 07-ORD-132; 06-ORD-230. Based on this position, Mr. Korte is entitled to an unredacted copy of the CRASH database that includes personal information such as home address and date of birth.
We hasten to note that were redactions permissible, it would, in fact, be incumbent on KSP to bear the associated costs and not to pass these costs along to Mr. Korte in the guise of building a new extract. 95-ORD-82. Mr. Korte did not ask that KSP tailor the format of its database to meet his request, as described in KRS 61.874(3) 4 and interpreted in 03-ORD-214, 5 but requested the database in its entirety. It is KSP's belief that redactions are required because excepted and nonexcepted materials are commingled in the database. While we disagree with this position, and believe, at a minimum, that KSP has exceeded its authority under KRS 61.878(1)(a) in redacting county and state of the accident victim residence as well as the year of the victim's birth, insofar as this information alone is "not descriptive of any readily identifiable person," 6 we conclude that KSP, and not The Cincinnati Enquirer, must shoulder the costs associated with permissible redactions, if any. In support, we attach 95-ORD-82 and incorporate that decision by reference for the proposition that the "deletion of . . .information is [not] equivalent to the production of a record in a specially tailored or nonstandardized format within the meaning of KRS 61.874(3) . . . [and agencies are] required to discharge this duty under KRS 61.878(4) and . . . bear the cost of redaction. " 95-ORD-82, p. 4. Any other conclusion would result in subversion of the intent of the Open Records Act, within the meaning of KRS 61.880(4), through the imposition of excessive fees. Nevertheless, in our view no redactions are permissible.
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 This request followed upon a February 5, 2007, emailed request and was solicited by KSP in order to include 2006 information which was not available at the time of the earlier request.
2 Mr. Korte's first attempt to initiate an open records appeal was unsuccessful insofar as it did not contain the requisite documentation per KRS 61.880(2). Mr. Korte later corrected this omission and perfected his appeal.
3 IACP Technology Clearinghouse - Law Enforcement Technology Program Survey http://www.iacptechnology.org/Programs/KentuckyStatePolice.htm.
4 KRS 61.874(3) thus provides:
The public agency may prescribe a reasonable fee for making copies of nonexempt public records requested for use for noncommercial purposes which shall not exceed the actual cost of reproduction, including the costs of the media and any mechanical processing cost incurred by the public agency, but not including the cost of staff required. If a public agency is asked to produce a record in a nonstandardized format, or to tailor the format to meet the request of an individual or a group, the public agency may at its discretion provide the requested format and recover staff costs as well as any actual costs incurred.
5 In 03-ORD-214, the requester asked that the Kentucky Tobacco Settlement Trust Corporation manipulate its database so as to afford him access to "a list of individuals, corporations, or other entities that received Phase II payments during calendar year 2002," the specific quantities used in calculating the payment, and if the entity was paid because it was exclusively a grower.
6 KRS 61.878(2).