10-ORD-195 | KOGC

Opinion

Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General

Open Records Decision

At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in the disposition of Anthony Mattingly's May 28, 2010, request for a copy of the "Police Report" he "filed through Trooper Mike McPherson on April 13, 2010 at [L]ittle Sandy Correctional Complex" regarding his complaint of identity theft. Although Mr. Mattingly received a "KSP 313" report confirming that his complaint is currently under investigation, which he forwarded to Experian, he was advised that said report did not satisfy the guidelines of the Fair Credit Reporting Act; accordingly, he initiated this appeal by letter dated July 18, 2010. In response to his appeal, KSP provided Mr. Mattingly with a copy of the "initial KYIBRS Report" and he now essentially questions the content of that record, arguing that information contained therein is not accurate or complete and noting that a "COMPLETED" Report will suffice, in "other words [one containing] the company name[s] and total loss." Because the Attorney General cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided," this office has no basis upon which to find that KSP committed a violation of the Open Records Act. 03-ORD-061, p. 2. Such issues are simply not justiciable in this forum.

Upon receiving notification of Mr. Mattingly's appeal from this office, Emily M. Perkins, Paralegal Consultant, responded on behalf of KSP, initially advising that the "Official Custodian of Records for the KSP never received a copy of his request and was not aware of this request until the Notice of the Open Records Appeal was received." 1 Ms. Perkins then explained that KSP "often receive requests for reports to satisfy insurance and other administrative purposes, and these requests are generally satisfied by the KSP Post Records Clerks issuing a 'KSP 313' report stating that the KSP has an investigation." The KSP 313, Ms. Perkins advised, lists "the title of the investigation, identifies the Complainant, location and date of incident, the investigating officer, and any property identified as stolen in the reported complaint." Accordingly, KSP Post 8 "issued a KSP 313 to Mr. Mattingly with the good faith belief that it would satisfy his request." By copy of its July 22 response, KSP denied what it characterized as Mr. Mattingly's request for a copy of the complete investigation report per KRS 17.150(2) and 61.878(1)(h) as the investigation is "open, ongoing . . . in its infancy, and the premature disclosure of the case could irreparably harm the ability of the investigator to develop leads and seek prosecution." In compliance with 09-ORD-205, however, Ms. Perkins agreed to provide Mr. Mattingly with "a copy of the initial KYIBRS report." 2

In reply, Mr. Mattingly asserted that said report was "not complete in any way[,]" emphasizing that it lists "a total stolen value of $ 1.00" when he "made the report concerning two (2) accounts due to identity theft with values well over" that amount, specifically "HSBC/Best Buy $ 2292.00" and "Chase $ 16555.00." Mr. Mattingly noted that the KSP 313 "was included in the original report" but also fails to include "the accounts and amounts" which are required. He further advised that he does "not expect the whole report" and "simply want[s] what the credit reporting agencies need [as identified in the letter from Experian, a copy of which he attached]." Mr. Mattingly has "no problem" with a "COMPLETED" copy of the initial page of the KYIBRS Report. 3

Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, this office asked KSP to provide us with a copy of the subject investigative file to review in camera as well as "any policies, directives, or other descriptions of the KSP 313 including authority to charge $ 2.00 for the record," and to "explain the discrepancy between the amounts Mr. Mattingly reported as stolen, totaling nearly $ 19,000, and the $ 1.00 figure that appears on the KYIBRS report." Ms. Perkins complied in a timely fashion, reiterating that the investigation pertaining to the identity theft of Mr. Mattingly "remains open and ongoing. " In addressing the discrepancy between the amounts that Mr. Mattingly reported stolen and the amount listed on the KYIBRS Report, Ms. Perkins explained that such reports are "due within 10 days of opening an investigation. Consequently, the information listed in the KYIBRS reports often [is] not a true and accurate reflection identifying each and every item reported as frequently the items are not yet known to the investigator at the time the KYIBRS report is due for submission."

With regard to policies, directives, etc. regarding the $ 2.00 charge for the KSP 313 reports, Ms. Perkins explained that the KSP 313 "is a form that was created many years ago (unable to determine the exact time the form was created) to satisfy requests from a crime victim or their insurance company in order to facilitate administrative commercial purposes such as processing an insurance claim." It was created "with the understanding that the public has a need to obtain this information for legitimate business purposes, but the investigation could not be released while it was an open investigation" under KRS 17.150(2) and 61.878(1)(h), "so the form serves as an alternative in order to satisfy these legitimate business purposes." 4 Because this form "is created and tailored to meet the individual needs for private business purposes," KSP "has charged a fee of $ 2.00 in order to recover its administrative costs in compliance with KRS 61.874(3)." Upon receipt of Ms. Perkins' response, Mr. Mattingly again emphasized that he "simply want[s] the KYIBRS report to include the correct names and amounts" and he does "not need a copy of the investigation."

As recently as earlier this month, the Attorney General recognized that "objections to alleged inaccuracies and omissions in the records disclosed" cannot be resolved in the context of an Open Records Appeal. 10-ORD-178 (issued September 9, 2010), p. 2. The appellant's "primary goal in pursuing" the appeal in that case was to correct inaccuracies and omissions in his child support payment history by having the Attorney General intervene just as Mr. Mattingly hoped that in pursuing this appeal he might succeed in forcing KSP to modify the content of the subject KYIBRS Report or create a new one. Id. However, this office "cannot order an agency to create records, or declare its failure to do so a subversion of the intent of the Open Records Act. " 96-ORD-139, p. 2; see 98-ORD-5. 5 Quoting the language of KRS 61.880(2)(a), 6 in 10-ORD-178 this office noted that "[t]his is not our role in adjudicating open records disputes." Id. The reasoning of that decision is controlling on the facts presented.

As the Attorney General has long recognized, this office cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided. Indeed, such is not the role of this office" under the Act. OAG 89-81, p. 3. In other words, "questions relating to the verifiability, authenticity, or validity of records disclosed under the Open Records Act are generally not capable of resolution under the Act." 05-ORD-236, p. 3 (reporter questioned the validity of invoices produced in response to request and the Attorney General advised that the relief sought was unavailable under the Act). See also 05-ORD-008 (questions concerning the value of information contained in records produced for public inspection are not justiciable in Open Records Appeal); 04-OMD-182 (questions regarding the authenticity of a public agency's meeting minutes were not appropriate for review by the Attorney General); 04-ORD-032 (recipient of public records questioned the degree of detail and "verifiability" of records produced in response to request and the Attorney General characterized the question as one that did not arise under the Act); 02-ORD-89 (recipient of public records questioned the quality and value of the information contained in those records and the Attorney General refused to consider this issue).

As in these decisions, the Attorney General finds that issues concerning the value of information contained in public records produced for inspection are not justiciable in the context of an Open Records Appeal; this office therefore declines to assign error on that basis. 7 If Mr. Mattingly has evidence that KSP willfully concealed or tampered with records, he may wish to consider the options available under KRS 61.991(2)(a), but such issues cannot be resolved in this forum and the record on appeal does not contain any evidence of such wrongdoing.

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.

Anthony Mattingly, # 115494Emily M. PerkinsRoger G. Wright

Footnotes

Footnotes

1 This assertion is entirely credible given that Mr. Mattingly directed his request to the "Post Clerk" at KSP Post 8 in Morehead, Ky., which appears to have complied with KRS 61.880(1) by providing a written response within three business days.

2 In 09-ORD-205, a copy of which is attached hereto for the parties' reference as to application of KRS 61.878(1)(h), this office held that the "UOR-1 (Initial Page)" of the KYIBRS Report was the "functional equivalent of the 'initial offense report' being sought" and that KSP improperly relied on KRS 61.878(1)(h) in withholding the document in its entirety though it could redact exempt information per KRS 61.878(4). Id., p. 1.