Request By:
Donald StankowskiAlicia M. Smiley
Media Relations
Louisville Metro Police Department
633 West Jefferson Street
Louisville, KY 40202Wm. Dennis Sims
Police Legal Advisor
Louisville Metro Police Department
633 West Jefferson Street
Louisville, KY 40202William P. O'Brien
Director of Civil Division
Jefferson County Attorney's Office
1001 Fiscal Court Building
531 Court Place
Louisville, KY 40202
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 Louisville Metro Police Department violated the Kentucky Open Records Act in denying the requests of Donald Stankowski for various records and information concerning the complaint he filed against Officer Sean Hayes on August 29, 2006, and the resulting investigation conducted by the Professional Standards Unit. In failing to issue a sufficiently detailed written response within three business days of receiving Mr. Stankowski's initial request, as opposed to responding with a telephone call, the Department violated the mandatory terms of KRS 61.880(1); however, the Department is not statutorily required to honor a request for information or create a record to satisfy a request. As evidenced by the following, the Department has otherwise failed to satisfy its burden of proof.
By letter directed to Captain Jeff Sherrard, Professional Standards Unit Commander, on February 26, 2007, Mr. Stankowski requested 1 "the following information:"
1. Date of the Officer's injuries?
2. Extent of his injuries?
3. Any and all doctor and hospital reports regarding his injuries?
4. Has he returned to his official duties as a police officer?
5. Date of return to his employment with the Police Dept.?
6. Cause of his injuries?
7. Listing of any misconduct charges against Officer Hayes and dates if so charged?
On February 27, 2007, Mr. Stankowski received a telephone call reply 2 to his request, advising him that Sergeant Pierce was handling the case but a written response was not required since his request was for information. By letter directed to Sergeant Pierce on April 30, 2007, Mr. Stankowski requested the following "records, information and [] any evidence, vocal or written statements of the officer and duplicates of the [photos] taken by the Officer" at his initial interview on August 29, 2006. In addition, Mr. Stankowski requested the "following information:"
1. Had someone made a complaint against Officer Hayes regarding my conduct? If so, please state the name of the individual.
2. How was Officer Hayes contacted [sic] that there was a problem at the 4th St. Live location?
3. I was informed the Officer had become injured and could not file his version of the incident with Internal Affairs. What was the date of his injury? How long did her remain off duty? What was the date of his return to active or inactive duty with Metro Police?
4. According to the Professional Standards Complaint Process it basically states [sic], your Unit completes theirs [sic] investigation in a period of 45 days. Understandable [sic] that the Office was injured, but my complaint has been lying stagnant for 8 months.
5. Has Officer Hayes received any prior complaint[s] by civilians as to misconduct of official duty [sic] as an officer of the Louisville Metro Police Department?
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996)(emphasis added). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id .; 01-ORD-183, pp. 2, 3. It logically follows that failing to respond in writing constitutes a violation of the Act; likewise, merely parroting the language of the statute does not suffice. As consistently recognized by the Attorney General, the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 04-ORD-084, p. 3, citing 93-ORD-125, p. 5.
A public employee's name, position, work station, and salary are subject to public inspection, as well as portions of the employee's [resume] reflecting relevant prior work experience, educational qualifications, and information regarding the employee's ability to discharge the responsibilities of public employment. See, for example, OAG 76-717, OAG 87-37, OAG 91-41, OAG 9-148, OAG 92-59, 94-ORD-26. In addition, reprimands to employees regarding job-related misconduct, and disciplinary records generally, have traditionally been treated as open records. See, for example, OAG 78-133, OAG 91-20, OAG 92-34, 95-ORD-123, 96-ORD-86. Letters of resignation submitted by public employees have also been characterized as open records.
Conversely, this office has affirmed agency denial of access to a public employee's home address, social security number, medical records , and marital status on the grounds that disclosure would constitute a clearly unwarranted invasion of personal privacy. See, for example, OAG 79-275, OAG 87-37, OAG 90-60, OAG 91-81, 94-ORD-91. Such matters are unrelated to the performance of public employment. Employee evaluations have also been held to fall within the parameters of KRS 61.878(1)(a) for the reasons stated in OAGs 77-394, 79-348, 80 58, 82-204, 86-15, and 89-90.
03-ORD-012, p. 8, citing 97-ORD-66, p. 5 (emphasis added). As previously recognized by the Attorney General, "these opinions are premised on the idea that a person does not typically work, or attend school, in secret, and therefore the employee's privacy interest in such information is outweighed by the public's right to know that the employee is qualified for public employment. " 93-ORD-32, p. 3; 00-ORD-090. That being said, the Attorney General has also expressly recognized that information of the nature requested falls within the parameters of KRS 61.878(1)(a) because such matters are unrelated to the performance of public employment.
Upon receipt of Mr. Stankowski's request on May 8, 2007, Alicia M. Smiley, Media Relations, promptly responded by letter dated May 9, 2007. With regard to vocal or written statements given by Officer Hayes and the requested photographs, Ms. Smiley denied access "pursuant to KRS 61.878(1)(h-j)." As explained by Ms. Smiley, these records "are preliminary as there is an ongoing investigation into your complaint and a final disposition has not yet been rendered." Likewise, Ms. Smiley denied Mr. Stankowski's request as to Items 1 and 2 "as these records are part of the ongoing investigation." Citing KRS 61.878(1)(a), Ms. Smiley also denied the request for Item 3, explaining the Department's position is that "the release of a person's medical condition and/or history constitutes an unwarranted invasion of personal privacy. " 3 As correctly observed by Ms. Smiley, Item 4 "is not a request for records." With regard to Item 5, Ms. Smiley enclosed "nine records related to three citizen complaints involving Officer Hayes." Relying upon KRS 61.878(1)(a), Ms. Smiley withheld "the names, phone numbers and addresses of the complainants and witnesses." It is the Department's position "that the release of this information constitutes an unwarranted invasion of personal privacy. " By letter dated August 8, 2007, Mr. Stankowski initiated this appeal from the denial of his request. 4
Upon receiving notification of Mr. Stankowski's appeal from this office, William Dennis Sims, Police Legal Advisor, responded on behalf of the Department, quoting the language of KRS 61.872(1) and 61.870(2), respectively. As a threshold matter, Mr. Sims noted that Mr. Stankowski directed both of his requests to the Professional Standards Unit which "does not deal with Open Records requests. The function of Professional Standards is the investigation of officer conduct." 5 Having summarized the content of Ms. Smiley's response, Mr. Sims then addresses Item 4 of Mr. Stankowski's second request in clarifying that "[w]hen the investigation was completed by the Professional Standards Unit, Mr. Stankowski received notification of the finding from Chief Robert White dated May 22, 2007." In addition, Mr. Sims argues that "[n]umerous statements from Mr. Stankowski do not include any type of request either for records or documentation and Mr. Stankowski was thus advised by Ms. Smiley in her May 9, 2007 letter and in a letter from me dated June 5, 2007." 6 In relying upon KRS 61.878(1)(a) to redact names and identifying information from the records disclosed, the "LMPD recognizes private citizens would be much less forthcoming with complaints or other information if they must also contend with their name and other identifying information being released to the general public." 7
Turning to the first substantive issue presented, this office concludes that governing precedents validate the position of the Department in relation to those requests properly characterized as requests for information rather than specifically described public records. Early on, this office clarified that the "purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. For this reason, the Attorney General has consistently held that "requests for information as opposed to requests for specifically described public records, need not be honored." 00-ORD-76, p. 3, citing OAG 76-375; 04-ORD-080. Elaborating upon this position, 8 the Attorney General has recognized:
Obviously information will be obtained from an inspection of the records and documents but the duty imposed upon public agencies under the Act is to make public documents available for inspection and copying. Public agencies are not required by the Open Records Act to gather and supply information independent of that which is set forth in public records. The public has a right to inspect public documents and to obtain whatever [nonexempt] information is contained in them but the primary impact of the Open Records Act is to make records available for inspection and copying and not to require the gathering and supplying of information.
04-ORD-080, p. 13, citing OAG 87-84. Of particular relevance on the facts presented:
This office has long recognized that a public agency is not obligated to compile a list or create a record to satisfy an open records request. See, e.g., OAG 76-375; OAG 79-547; OAG 81-333; OAG 86-51; OAG 90-101; 93-ORD-50. At page 2 of 93-ORD-50, we observed:
[T]he Kentucky Open Records Act was not intended to provide a requester with particular "information," or to require public agencies to compile information, to conform to the parameters of a given request.
02-ORD-165, p. 4. Simply put, "what the public gets is what . . . [the public agency has] and in the format in which . . . [the agency has] it." Id., p. 5, citing OAG 91-12, p. 5. A review of the statutory language upon which these decisions are premised, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records ") (emphasis added), validates this position. 9 In light of this determination, the question becomes whether the Department properly relied upon KRS 61.878(1)(h) in denying Mr. Stankowski's request for vocal or written statements given by Officer Hayes as well as duplicates of the photos taken by him on August 29, 2006.
While the Department is unquestionably a law enforcement agency, and some of the records being sought were compiled in the process of detecting and investigating statutory or regulatory violations, the Department satisfied the first two requirements of KRS 61.878(1)(h); however, the Department failed to make the requisite showing of the harm that would result from premature disclosure of the records, to the extent any were requested and not otherwise protected. Applying the analysis employed by the
Kentucky Supreme Court in University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W. 373 (1992), the Attorney General has rejected public agency reliance on KRS 61.878(1)(h) in a series of decisions. See 02-ORD-179; 00-ORD-196; 97-ORD-129; 96-ORD-155. Given the legislative mandate of KRS 61.871 - that all of the exceptions codified at KRS 61.878 be "strictly construed" - and the express prohibition against use of KRS 61.878(1)(h) in particular "to delay or impede the exercise of rights granted" by the Open Records Act found in that exception, this office has consistently recognized that a public agency can properly deny access on the basis of KRS 61.878(1)(h) only if the agency satisfies each part of the aforementioned test. While the subject investigation was not complete nor had a final determination been made, that is not enough, standing alone, to justify a denial.
In our view, the analysis contained in 03-ORD-015, a copy of which is attached hereto and incorporated by reference, applies with equal force on the facts presented. As in 03-ORD-015 and the authorities upon which that decision is premised, the public agency did not attempt to justify its denial with specificity but failed to satisfy its burden of proof under KRS 61.880(2)(c) relative to KRS 61.878(1)(h). See 04-ORD-104; 04-ORD-188. Numerous decisions of this office also support the position that a public agency is not required to honor a request for investigative records " until the investigation is closed and final action has been taken ." 05-ORD-162, p. 7 (emphasis added); 04-ORD-188; 04-ORD-041; 02-ORD-208; 97-ORD-107; 93-ORD-117. Because the Department issued a finding in this matter on May 22, 2007, as evidenced by the record, KRS 61.878(1)(h) no longer applies even assuming the Department had initially satisfied the requirements.
In response to Item 5 of Mr. Stankowski's request dated April 30, 2007, the Department provided him with "nine records related to three citizen complaints involving Officer Hayes" but redacted the names, telephone numbers and addresses of the complainants and witnesses under authority of KRS 61.878(1)(a). 10 At page 6 of 98-ORD-100, this office engaged in the following determinative analysis in holding that Lexington-Fayette Urban County Government properly refused to disclose the home addresses, telephone numbers, and other personal identifiers of the witnesses interviewed during the subject investigation:
Kentucky's courts have recognized that these items of information "are generally accepted by society as details in which an individual has at least some expectation of privacy." Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994). While telephone numbers and home addresses are often available through telephone directories and voter registration lists, the courts have nevertheless declared that "this information is no less private." Id . The question is not one of "total non-disclosure, but . . . an individual's interest in selective disclosure. " Id . The courts have therefore left little doubt that they consider the telephone numbers and home addresses of private citizens "information of a personal nature." Id .
Conversely, this office has recognized the following relative to the privacy interest of an individual in his or her name: " [A] person's name is personal but it is the least private thing about him . . . . The name of a person should not be deleted from a public record unless there is some special reason provided by statute or court order ( i.e., adoption records )." OAG 82-234, at p. 3 (emphasis added). See 98-ORD-123 (upholding the decision by the LFUCG to release a witness report, including the name, but with home address and telephone number redacted under KRS 61.878(1)(a)).
Of particular significance on the facts presented, this office has long recognized that "the identity of a complainant can be withheld under KRS 61.878(1)(a) where the complainant's privacy interest outweighs the public's interest in disclosure, a public agency cannot adopt a policy of blanket nondisclosure relative to this or any other piece of information appearing on a public record ." 96-ORD-177, p. 2 (emphasis added). 11 At page 8 of 94-ORD-133, the Attorney General held:
[A] generic determination that certain categories of information are excluded from the mandatory disclosure provisions of the Open Records Law under [KRS 61.878(1)(a)], or any other exception does not satisfy the requirements of the law. In reaching this decision, we are guided by several pertinent sections of the law, bearing in mind 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." KRS 61.871. First of all, KRS 61.880(2) mandates that the burden of proof in sustaining a public agency's denial of an open records request rests with the agency. Second, an agency can properly rely on KRS 61.878(1)(a) in withholding a record only if it can establish that the public's interest in release of the record is outweighed by the individual's privacy interest. Finally, KRS 61.878(4) makes explicit the requirement of particularized justification[.]
See also 96-ORD-177. Thus, "in the absence of a particularized showing that an individual complainant's identity was properly withheld, as for example where the complainant requests anonymity or could reasonably expect confidentiality, the [Department] cannot withhold this information." Id., p. 2. If the Department can make such a showing, the names and contact information of the complainants and witnesses may be withheld; however, a policy of blanket nondisclosure is not 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 Upon speaking with a Sergeant Gries on several occasions, Mr. Stankowski was informed that Officer Hayes had been injured so an inquiry as to his version of the events in question could not be conducted.
2 As a public agency, the Department is required to comply with both the procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests submitted under the Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days , excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision . An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
3 [ILLEGIBLE FOOTNOTE].
4 Although Mr. Stankowski raises a number of related issues, the Attorney General is "not empowered to resolve . . . non-open records related issues in an appeal initiated under" KRS 61.880(2)(a). 99-ORD-121, p. 17. In short, the role of the Attorney General in adjudicating a dispute arising under the Open Records Act is narrowly defined by KRS 61.880(2); this office is without authority to deviate from that statutory mandate.
With regard to imposition of copying and postage fees, the parties are referred to KRS 61.874(3), KRS 61.874(1), and KRS 61.872(3)(b); the Open Records Act contains no provision mandating the waiver of such costs for any party regardless of his or her financial status. 05-ORD-230, p. 6. See 99-ORD-30; 94-ORD-90. Simply put, "all persons have the same standing to inspect and receive copies of public records, and are subject to the same obligation for receipt thereof." 94-ORD-90, p. 3. Accordingly, the Department was entitled to require prepayment of a reasonable copying charge that did not exceed the actual cost of duplication, and enforce a standard policy relative to assessment of the charge. See also 99-ORD-179; 98-ORD-95. A public agency "may, of course, elect to waive the copying charge." 94-ORD-90, note 1.
5 In so noting, Mr. Sims implicitly and correctly asserts that Mr. Stankowski was required to submit his requests to the Department's official custodian of records in accordance with KRS 61.872(2); however, the individual who contacted Mr. Stankowski via telephone apparently did not so advise him nor does Mr. Sims identify this person so as to avoid this problem in the future. In any event, Sergeant Pierce properly forwarded the request in the second instance and Ms. Smiley responded in a timely manner.
6 Because the letter directed to Mr. Stankowski by Mr. Sims on June 5, 2007, responds to a similar but separate request (date unknown), a copy of which is not of record, this office must decline to consider that request and response in accordance with KRS 61.880(2)(a).
7 In conclusion, Mr. Sims asserts that Mr. Stankowski is "entitled to the complaint and the final disposition of the Professional Standards file, but not to the contents of the files pursuant to KRS 61.878(1)(i) and (j) and City of Louisville v. Courier-Journal and Louisville Times Co., [Ky. App.], 637 S.W.2d 658 (1982)." Because Mr. Stankowski did not request, on either occasion, the investigative files in their entirety, nor did the Department raise this argument, consequently, resolution of this issue is not warranted; however, the Department should review the analysis contained in 07-ORD-090, a copy of which is attached hereto and incorporated by reference, as the courts and this office have long recognized that investigative materials which are protected under KRS 61.878(1)(i) and (j) but are subsequently adopted by the agency as the basis of its final action lose their exempt status and become open to public inspection. See Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky. App., 663 S.W.2d 953 (1983) and University of Kentucky v. Courier-Journal and Louisville Times Company, Ky., 830 S.W.2d 373, 378 (1992).
8 On a related note, this office has consistently recognized:
An open records request should not be drawn by artifice and cunning to create a trap for the unwary public agency. Conversely, the request should not require "the specificity of a carefully drawn set of discovery requests, so as to outwit narrowing legalistic interpretations by the government."
02-ORD-89, p. 4, citing 95-ORD-49, p. 5 (citation omitted). In the final analysis, this office assumes "a modicum of good faith from both parties to an open records appeal: from the requester in formulating his request, and from the official custodian in providing the records which satisfy the request." Id., citing 96-ORD-223, p. 4 (citation omitted).
9 However, the analysis does not usually end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (Original emphasis). In keeping with this position, the Attorney General has noted that if a requester is unable to identify the records sought for inspection with sufficient specificity, or wishes to extract information which has not already been compiled, he "may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. " 98-ORD-17, p. 10, citing OAG 76-375, p. 3. In this case, the requested information is exempt from disclosure; accordingly, the Department is not required to make records which are potentially responsive available for inspection. See 05-ORD-272.
10 See 06-ORD-036, pp. 4-11, for the standard analysis employed by this office in determining whether a public agency has properly relied upon KRS 61.878(1)(a).
11 In 04-ORD-188, this office expressly rejected a public agency's attempt to withhold, as a matter of policy, categories of information from law enforcement records on the basis of KRS 61.878(1)(a). At page three of that decision, this office found that "a law enforcement agency violates the Open Records Act by engaging in the practice of withholding victims' names, addresses, and other personal identifiers from incident reports, absent a particularized showing of a heightened privacy interest outweighing the public's interest in disclosure. " A narrow exception has been recognized for victims of sexual offenses identified in Chapter 510 of the Kentucky Revised Statutes. See 02-ORD-36.