Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the actions of the Kentucky State Police (KSP) relative to Mike Burton's September 17, 2007, request for a "copy of the entire video taken of cadet class #86 and any videos taken of any classes for the past three years of the training taken in the first 48 hours of the class" and the names and addresses of the cadets that left in the first 48 hours of cadet class 86 2007," violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
By letter dated September 25, 2007, Mary Ann Scott, Official Custodian of Records, Commissioner's Office, KSP, responded to Mr. Burton's request, advising:
Enclosed you will find a copy of resignations and personnel orders accepting the resignations of cadets that resigned in the first 48 hours of Cadet Class #86. However, personal information for the cadets such as personal addresses, phone numbers, etc. will not be released in compliance to KRS 61.878(1)(a), as disclosure would constitute a clearly unwarranted invasion of personal privacy. . . .
Please be advised that the agency is working to identify and copy all videos that may be in existence and said videos will be forwarded to our Legal Branch for review and redaction consistent with the applicable statutes. The information will be released to you to the extent required under the Kentucky Open Records Act, upon completion of the review. The records should be mailed to you on or before Friday, October 5, 2007.
By letter dated October 2, 2007, Ms. Scott further responded to Mr. Burton, advising, in relevant part:
Please be advised that the only footage of previous classes that is available are the final class videos. However, a copy of video for Class #86 and previous classes going back to 2004 have been obtained and will be released to you upon payment of the appropriate fees. Please remit a total of $ 14.50 (this includes 4 DVDs at $ 3.00 and $ 2.50 postage to this office. . . .
Shortly thereafter, Mr. Burton initiated the instant appeal. In his letter of appeal, he stated that he personally picked up the DVDs on October 2, 2007, and was charged $ 2.50 for postage which should not have been charged since he picked the tapes up and that he felt that certain information was edited out of the DVDs.
After receipt of the notification of the appeal, Emily M. Perkins, Commissioner's Office, KSP, provided this office with a response to the issues raised in the appeal. In her response, Ms Perkins advised:
First, please be advised that the Department provided all video, unredacted, in its possession to Mr. Burton. There may be have been some confusion pertaining to redaction because in the Department's initial response to Mr. Burton, mailed prior to the receipt of the videos in question, a statement was made that the videos would be forwarded to the Legal Branch for review and redaction, however, no redactions were made.
Second, Mr. Burton personally appeared to obtain the videos with a money order in hand for the amount specified by the Department's response. The Department did not, nor does it typically, have any cash to issue any refund to Mr. Burton. Mr. Burton also failed to notify this office that he wished to obtain a refund for the postage paid. However, upon request from Mr. Burton, this office will issue him a check to refund the postage charges.
Ms. Perkins concluded her response arguing that the KSP fully complied with Mr. Burton's request and provided the records responsive to his request, thus making the appeal moot.
Pursuant to 40 KAR 1:030, Section 6: "If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." 04-ORD-106. Since the KSP has provided Mr. Burton with records responsive to his request, we conclude that the appeal as to access to those records is moot and no decision will be rendered as to them.
We next address the issue of the redaction of copies of resignations and personnel orders accepting the resignations of cadets that resigned in the first 48 hours of Cadet Class #86, which were provided to Mr. Burton, with personal information, such as personal addresses and phone numbers, redacted pursuant to KRS 61.878(1)(a). That statute excludes from public inspection:
Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
The Kentucky Court of Appeals in Zink v. Commonwealth, Ky. App., 902 S.W.2d 825 (1994) recognized that the purpose for which the Open Records Act was enacted would not be furthered "by disclosure of information about private citizens that is accumulated in various government files that reveals little or nothing about an agency's own conduct." Zink at 829. The court specifically identified home addresses, telephone numbers, social security numbers, and income as those items of information in which the public has no legitimate interest. We believe that the reasoning in Zink can be extended to the present appeal. Under Zink, the KSP could properly redact the personal information in the records at issue here, as this information would reveal negligible information about the agency's conduct. KRS 61.878(4).
Mr. Burton also argues that the KSP failed to timely respond to his open records request. Mr. Burton's request letter is dated September 17, 2007. KSP's response letter to Mr. Burton is dated September 25, 2007. Insufficient information is presented in this appeal for this office to resolve the factual dispute concerning the actual delivery and receipt of Mr. Burton's September 17, 2007, open records request, and we make no finding in this regard. See 03-ORD-061. In its September 25, 2007, response, KSP advised Mr. Burton that it was working to identify and copy all videos that may be in existence and the videos would be forwarded to the Legal Branch for review and redaction consistent with the applicable statutes. KSP further advised him that the records should be mailed to him on or before Friday, October 5, 2007. By letter dated October 2, 2007, the KSP advised Mr. Burton that the requested videos had been obtained and would be released to him upon payment of appropriate fees. KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
We find that the KSP complied with KRS 61.872(5) by providing Mr. Burton with a detailed explanation of the cause for delay and advising him that the records would be available for mailing, upon prepayment of copying and postage charges, on or before October 5, 2007. The records were made available on October 2, 2007. Under these facts, we find no violation of the Open Record Act.
Finally, Mr. Burton asserts that he was charged for postage, even though he personally came and picked up the records. In its response provided to this office, KSP advised that it would provide him a refund, if he would send in a request. Accordingly, if he has not already done so, he should contact the KSP to receive a refund.
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.