Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Department of Criminal Justice Training improperly relied on KRS 237.110(22)(d) in denying Fox 41 News reporter Bennett Haeberle's November 7, 2011, request for a copy of "the complete investigative report related to the discharge of a weapon that occurred in January of this year at the Kentucky Constables Association located at or near 4919 Dixie Highway in Louisville, Ky." Although KRS 237.110(22)(d) prohibits disclosure of "concealed deadly weapon class applicant[s], instructor [s], and instructor trainer information and records," it does not prohibit disclosure of investigations conducted by the Department of Criminal Justice Training into the discharge of weapons occurring during concealed deadly weapon training classes. Pursuant to KRS 61.878(4), it was incumbent on DOCJT to "separate the excepted and make the nonexcepted material available for examination" by Mr. Haeberle.
In a timely response transmitted by email, DOCJT advised Mr. Haeberle:
The investigation that the Department of Criminal Justice Training conducted beginning on March 23, 2011, regarding the discharge of a weapon at 4919 Dixie Highway in Louisville related to a course being conducted for applicants for a carrying concealed deadly weapons license. Pursuant to KRS 237.110(22)(d), concealed deadly weapon class applicant, instructor, and instructor trainer information and records are deemed confidential. As a result, we are unable to provide a copy of the investigation report under the Kentucky Open Records Act.
Shortly thereafter Mr. Haeberle initiated this appeal, noting that the discharged bullet "went through the drywall and into the satellite office of the Jefferson County Clerk (Dixie Highway location)," and asserting that "the public has a right to know when a weapon is fired and the projectile goes into a public office during business hours." We agree.
DOCJT relies on KRS 237.110(22)(d) in denying Mr. Haeberle's request. That statute provides:
Each concealed deadly weapon instructor or instructor trainer who teaches a concealed deadly weapon applicant or concealed deadly weapon instructor class shall supply the Department of Criminal Justice Training with a class roster indicating which students enrolled and successfully completed the class, and which contains the name and address of each student, within five (5) working days of the completion of the class. The information may be sent by mail, facsimile, e-mail, or other method which will result in the receipt of or production of a hard copy of the information. The postmark, facsimile date, or e-mail date shall be considered as the date on which the notice was sent. Concealed deadly weapon class applicant, instructor, and instructor trainer information and records shall be confidential. The department may release to any person or organization the name, address, and telephone number of a concealed deadly weapon instructor or instructor trainer if that instructor or instructor trainer authorizes the release of the information in writing. The department shall include on any application for an instructor or instructor trainer certification a statement that the applicant either does or does not desire the applicant's name, address, and telephone number to be made public.
Although KRS 237.110(22)(d) is "an enactment of the General Assembly" that "prohibit[s] or restrict[s] or otherwise make[s] confidential" 1 "concealed deadly weapon class applicant[s], instructor [s], and instructor trainer information and records," that statute cannot be construed so broadly as to extend to investigations conducted by DOCJT into classroom occurrences that endanger the safety of others. Such an interpretation would permit DOCJT to withhold records of an investigation completely unrelated to the issuance of a concealed deadly weapon permit under this exception.
Where, as here, a public record "contains material which is not excepted under [KRS 61.878(1)(a) through (n)], the public agency [DOCJT] shall separate the excepted and make the non-excepted material available for examination." In construing this provision, the Attorney General has often recognized that a request to inspect, examine, or obtain copies of public records cannot be denied on the grounds that confidential information is commingled with the non-confidential information in a single record or file. See, e.g., 95-ORD-82. If it is necessary to separate confidential from non-confidential information in order to permit inspection, examination, or copying of public records, public agencies must bear the cost of separation. Id.; see also 03-ORD-004 (citing a line of open records decisions recognizing that redaction of exempt information from nonexempt information is not equivalent to the nonobligatory creation of a new record and holding that it is the agency's duty to do so under KRS 61.878(4) and to absorb the costs associated with redaction) . DOCJT's refusal to release its investigative file relating to the January, 2011, incident after redacting or masking the information that identified class applicants, instructors, and/or instructor/ trainers therefore constituted a violation of the Open Records Act.
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:
Bennett HaeberleSteve LynnSusan Higgins
Footnotes
Footnotes