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 Oak Grove Police Department violated the Open Records Act in denying Kentucky New Era reporter Julia Hunter's September 25, 2007, request for copies of all accident reports generated by that agency on August 10 and September 21, 2007, and in failing to respond, in any fashion, to a revised request Ms. Hunter submitted on October 3, 2007. For the reasons that follow, we find that the Department violated both the Open Records Act and KRS 189.635(6) in denying Ms. Hunter's September 25 request, and KRS 61.880(1) in failing to respond to her October 3, 2007, request.
In a response to Ms. Hunter's September 25 request issued on the day of receipt, Oak Grove Police Department Patrol Supervisor William Sparks indicated that although the Department "is authorized to give out basic information concerning accidents through . . . news releases," requests "for complete copies of reports . . . must be made through Kentucky State Police Records Section." Captain Sparks explained:
The Oak Grove Police Department no longer maintains accident reports in our files. The final and approved reports are kept in the Kentucky State Police computer system.
On this basis, he concluded, "KSP is the custodian of such records and any open records requests would need to be made to them." 1
On October 8, 2007, Ms. Hunter initiated this open records appeal, challenging the Department's position that the requested reports "are not public records because final reports are kept in the Kentucky State Police computer system. " On October 10, 2007, this office issued notification of receipt of Kentucky New Era's appeal to Captain Sparks and Oak Grove City Attorney Jason Holland, advising them that "[p]ursuant to 40 KAR 1:030 Section 2, the agency may respond to this appeal." We received no supplemental response from the Department.
Although Ms. Hunter's appeal did not arise from the conduct of the Kentucky State Police, we notified KSP of her appeal to afford that agency an opportunity to state its position. By letter dated October 16, 2007, KSP Official Custodian of Records Mary Ann Scott responded to Ms. Hunter's appeal. Ms. Scott indicated that KSP received a separate request from Ms. Hunter for the same records and promptly released them to her, but objected to the Oak Grove Police Department's assertion that it has no obligation to honor Ms. Hunter's request. She explained:
[T]he Oak Grove Police Department has access to accident reports prepared by their agency through the CRASH 2 database. Therefore, the accident reports filed by that agency are available to that agency, even if the agency does not maintain hard copies of the records . . . . As the records in question were in fact prepared by the Oak Grove Police Department and are available to them through the CRASH database that agency should be obligated to provide such records.
In closing, Ms. Scott noted that "[i]f every police agency throughout the Commonwealth were to refer Open Records Requests for accident reports to the KSP, this office would cease to operate due to the sheer volume of requests received and the burden of attempting to produce records responsive to the requests, creating an undue burden on this agency as defined in KRS 61.872(6)."
As both KSP and Kentucky New Era emphasize, the accident reports to which Ms. Hunter requests access are public records that fall within the parameters of KRS 61.870(2) insofar as they consist of "documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of, or retained by a public agency. " The Department prepares the reports, and, as KSP correctly notes, they are accessible to the Oak Grove Police Department through the CRASH database. We fully concur with KSP in the view that the Oak Grove Police Department cannot evade its statutory duty to maintain the confidentiality of accident reports as to all requesters except "the parties to the accident, the parents or guardians of a minor who is a party to the accident, the insurers of any party who is the subject of the report, . . . the attorneys of the parties," KRS 189.635(5), and "newsgathering organizations, solely for the purpose of publishing or broadcasting the news," KRS 189.635(6) by misdirecting open records applicants to KSP. As we noted at page 4 of 02-ORD-19, KRS 189.635(5) and (6) "place an affirmative duty on law enforcement agencies that generate accident reports to make those reports available to the individuals or entities expressly identified" and to maintain their confidentiality as to all others. Again, at page 5 of that decision we observed, "KRS 189.635 is a specific statute mandating disclosure of accident reports of law enforcement agencies required to file reports with the Department of State Police to the named individuals and entities . . . ." Accord, 03-ORD-188; 07-ORD-162.
The Oak Grove Police Department does not dispute Kentucky New Era's status as a newsgathering organization for purposes of KRS 189.635(6). Nor does it question Kentucky New Era's intended use of the accident reports. Compare, 07-ORD-194. Instead, the Department shifts the burden to the Kentucky State Police to assess all incoming open records requests for law enforcement agency specific accident reports, and to enforce and implement KRS 189.635(5) and (6). We find nothing in the language of the Open Records Act or KRS 189.635 that authorizes this course of action, and therefore conclude that the Oak Grove Police Department violated both laws in denying Ms. Hunter's request.
Turning to the procedural issues Ms. Hunter's appeal raises, we find that although the Oak Grove Police Department issued a timely, albeit legally flawed, written response to Kentucky New Era's September 25 request, it erred in failing to respond in any fashion to her subsequent request. 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.) In interpreting this provision, the Kentucky Court of Appeals has observed that "[t]he language of the statute directing agency action is exact."
Edmondson v. Alig, 926 S.W.2d 856 (Ky. App. 1996). It requires a written response, containing "particular and detailed information" within three business days of receipt. Id. Public agencies, including the Oak Grove Police Department, are not relieved of this duty simply because they responded to an earlier request. Accordingly, we find that the Department violated KRS 61.880(1) in failing to respond to Ms. Hunter's October 3 revised 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 In her October 3 revised request, Ms. Hunter disputed the Department's position, asserting that, under the Open Records Act, "any record that is prepared, owned, used, possessed, or retained by a public agency" is a public record and "must be made available upon request." In addition to her requests for accident reports generated on August 10 and September 21, Ms. Hunter requested reports generated on September 24. She received no response to this revised request.
2 Collision Report Analysis for Safer Highways.