Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Police Department subverted the intent of the Open Records Act, short of denial of inspection and within the meaning of KRS 61.880(4), 1 in the disposition of Rachel B. Shteir's July 7, 2007, request for "access to and copies of the arrest report of Edward Charles Davis, the subject of a lengthy Supreme Court case in the 1970's." Ms. Shteir indicated that she wished to obtain the report for her "book, forthcoming, on the history of shoplifting. " 2 On July 18, 2007, LMPD responded to Ms. Shteir's request through its Public Information Specialist, Alicia M. Smiley. Ms. Smiley explained that the LMPD Records Department "requires a date of birth and/or social security number to ensure that the records being released are accurate." Having reviewed the brief record on appeal, we find that LMPD subverted the intent of the Act, short of denying inspection, in requiring her to provide the date of birth and/or social security number of the individual whose record she sought.
In supplemental correspondence directed to this office following commencement of Ms. Shteir's appeal, LMPD elaborated on its position. On behalf of the Department, Ms. Smiley explained:
Ms. Shteir was advised both verbally and in writing, that a date of birth or a social security number would be necessary to ensure that the records being released were accurate, particularly considering that the name in question is not at all uncommon.
The request for additional information from Ms. Shteir was not at all out of the ordinary especially in light of the limited information she provided. She made no reference to the crime Mr. Davis was involved in, the location where it occurred, the nature of the Supreme Court case or even an approximate date, keeping in mind that she was requesting reports that would be more than thirty years old.
Because Ms. Shteir did not provide LMPD with Edward Charles Davis' date of birth or social security number in the intervening year, Ms. Smiley requested that her appeal "be determined as having no merit."
Resolution of the question presented in this appeal turns on the interpretation of KRS 61.872(2). That statute provides:
Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency.
In construing this provision, the Attorney General has recognized that a public agency:
may require, if it desires to do so, that a request or application be in writing. If a request or application is required, the statute is satisfied if the written application . . . contains the following:
94-ORD-101, p. 2. This position echoed an early open records opinion in which the Attorney General stated that "[p]ublic agencies may put into their regulations the requirement for written application but we believe it is contrary to the letter and spirit of the open records law for an agency to make it more difficult to inspect a public record than it was before the open records law was enacted." OAG 76-588, p. 2; see also 98-ORD-60 and 07-ORD-126. LMPD does not dispute the adequacy of Ms. Shteir's request under this standard.
Instead, LMPD attempts to impose additional requirements on Ms. Shteir's request. In a recent Kentucky Supreme Court opinion, the Court directly addressed this issue, observing:
[N]othing in KRS 61.872(2) contains any sort of particularity requirement. Rather, KRS 61.872(2) only requires that one seeking to inspect public records may be required to submit a written application "describing the records to be inspected. " We must interpret statutes as written, without adding any language to the statute, even in open records cases. And it is obvious that the General Assembly chose only to require the record to be described. It did not add any modifiers like particularly described.
Department of Corrections v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008).
In Chestnut, the requester sought access to a "copy of [his] inmate file excluding any documents that would be considered cofidential [sic]." The Court determined that Chestnut's request satisfied the standard found at KRS 61.872(2), concluding that the request "was adequate for a reasonable person to ascertain the nature and scope of [his] open records request." Id. In so holding, the Court noted that he was required to do nothing more than describe the record sought, and "likely could not have done anything more because he could not reasonably be expected to request blindly, yet with particularity, documents . . . he had never seen." Id.
Like the Court and this office, the LMPD Records Department "lack[s] the power to rewrite the open records act," id., as it relates to the adequacy of Ms. Shteir's request, by requiring her to provide Mr. Davis' date of birth, and/or social security number. She identified the individual whose record she sought by first name, middle name, and last name, and specified the offense with which he was charged, namely, shoplifting. She "could not reasonably be expected," to provide intimate details about Edward Charles Davis such as his date of birth and social security number. Id. at 661. We therefore conclude that LMPD subverted the intent of the Open Records Act, within the meaning of KRS 61.880(4) and short of denial of inspection, by requiring Ms. Shteir to provide its Records Department with Edward Charles Davis' date of birth and/or social security number as a precondition to releasing Mr. Davis' arrest report to her.
Having so concluded, we nevertheless note that Ms. Shteir's request was not "precise," nor was the record she requested "readily available within the public agency. " KRS 61.872(3)(b) provides that a person may inspect public records:
By receiving copies of the public records from the public agency through the mail. The public agency shall mail copies of the public records to a person whose residence or principal place of business is outside the county in which the public records are located after he precisely describes the public records which are readily available within the public agency. If the person requesting the public records requests that copies of the records be mailed, the official custodian shall mail the copies upon receipt of all fees and the cost of mailing.
In Chestnut, id., the Court contrasted "the absence of a particularity requirement under KRS 61.872(2) . . . with the fact that the General Assembly inserted a particularity requirement in KRS 61.872(3), which applies when a person seeks to receive copies of public records by mail. "
Although LMPD "did not raise that subsection's applicability" in its response to Ms. Shteir or its supplemental response to her appeal, we believe that because she requested that a copy of Edward Charles Davis' arrest report be mailed to her, she was obligated to provide a more "precise" description. Ms. Shteir indicated that Mr. Davis was arrested for shoplifting and that he was the subject of a United States Supreme Court case. It would have required little effort, on her part, to conduct a search of United States Supreme Court cases in which the name Edward Charles Davis appeared to provide a precise description of the year of his arrest. Our cursory search discloses that Edward Charles Davis was "arrested in Louisville on a charge of shoplifting" "on June 14, 1971."
Paul v. Davis, 424 U.S. 693, 696 (1976). Accordingly, we find that Ms. Shteir should resubmit her request to LMPD, identifying the individual whose arrest report she seeks by his first, middle, and last name, the offense for which he was arrested, and the date of his arrest. Once she has done so, LMPD will be statutorily obligated to notify Ms. Shteir of the copying and postage fees, within three business days, and, upon prepayment of these fees, mail her a copy of Mr. Davis' arrest report. 3
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.
Distributed to:
Rachel B. ShteirAlicia M. SmileyWilliam P. O'Brien
Footnotes
Footnotes
1 KRS 61.880(4) provides:
If a person feels the intent of KRS 61.870 to 61.884 is being subverted by an agency short of denial of inspection, including but not limited to the imposition of excessive fees or the misdirection of the applicant, the person may complain in writing to the Attorney General, and the complaint shall be subject to the same adjudicatory process as if the record had been denied.
2 Although she did not provide this office with a copy, on July 8, 2007, Ms. Shteir submitted a second request directly to Ms. Smiley, describing the record sought in nearly identical terms but again emphasizing that "[t]he public has an urgent need for information about shoplifting . . . ." A copy of the July 8 request was included in the supporting materials transmitted to the Attorney General in LMPD's supplemental response.
3 LMPD may impose a reasonable copying fee not to exceed ten cents per page, and postage, as a precondition to disclosure. The Kentucky Open Records Act does not contain a fee waiver provision. See Friend v. Rees, 696 S.W.2d 325 (Ky. App. 1985).