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 because Capitol Radio Traffic Systems is a newsgathering organization within the meaning of KRS 189.635(8), 1 as construed in 13-ORD-025, the City of Elizabethtown is prohibited from redacting accident reports disclosed to it under authority of that statute, as construed in 02-ORD-19, 03-ORD-188, and 07-ORD-162. The city's decision to do so constituted a violation of the Open Records Act as did its failure to identify the statutory basis for these substantial redactions. Consistent, however, with this office's interpretation of KRS 189.635(8) in 13-ORD-025, Capitol Radio's intended use of the accident reports has not been conclusively established. 2 If that use is a commercial one, Capitol Radio is entirely foreclosed from accessing the reports. It remains for the parties to resolve the issue of whether Capitol Radio's intended use of the reports is a commercial one.
In responding to Capitol Radio's December 10, 2012, request for accident reports generated in the period from December 2 to December 9, the city agreed to provide copies at a cost of $ 5.00 per report 3 plus the cost of postage. Those copies were heavily redacted, and the city offered no supporting statutory justification or explanation as required by KRS 61.880(1). Capitol Radio thereafter appealed, questioning the city's procedural and substantive compliance with the Open Records Act. In supplemental correspondence directed to this office, the city expressed its doubts about Capitol Radio's status as a newsgathering organization and its reluctance to provide unredacted copies of responsive reports. The former issue was resolved in 13-ORD-025 and the latter issue was resolved in 02-ORD-19. As noted, resolution of the remaining issue, namely Capitol Radio's intended use of the reports, rests with the parties. As in 13-ORD-025, if Capitol Radio is dissatisfied with the resolution of the issue, it may pursue a separate appeal.
In 13-ORD-025, the Attorney General determined that, "[g]iven the broad definition of the term ['newsgathering organization'] found in Capitol Resources , above, and the court's hesitation to interpret KRS 189.635(8) in such a way as to derogate a free press," Capitol Radio Traffic Systems "must be accorded the . . . status" of a newsgathering organization. 13-ORD-025, pp. 4-5. A copy of that decision is attached hereto and incorporated by reference. On the issue of Capitol Radio's status as a newsgathering organization, 13-ORD-025 is controlling.
In 02-ORD-19, the Attorney General determined that KRS 189.635(5) and (8):
place an affirmative duty on law enforcement agencies that maintain accident reports to make those reports available to the individuals or entities identified therein without restriction. The only restriction that appears in the statute is the restriction imposed on newsgathering organizations from using or distributing the reports, or knowingly allowing their use or distribution, for a commercial purpose.
02-ORD-19, p. 4. 4 At page 5 of that decision, the Attorney General acknowledged that although KRS 189.635 "evince[s a] . . . legislative commitment to protecting personal privacy," the language of the statute "falls short of this goal." 02-ORD-19, p. 5. We suggested that:
If it is the legislative will that protection be extended to parties involved in vehicular accidents, the legislature may wish to amend KRS 189.635[(8)] in such a way as to permit law enforcement agencies to withhold personal information . . . .
02-ORD-19, pp, 4-5. Here, as in 02-ORD-19, we are "bound to observe the express language of KRS 189.635(5) and (8) requiring disclosure of unredacted copies of accident reports to all named individuals or entities, including newsgathering organizations solely for the purpose of publishing or broadcasting the news." If, upon further review, it is determined that Capitol Radio's intended use of the accident reports is a noncommercial one, it must be provided with unredacted copies of those reports. If, on the other hand, it is determined that its intended use of the accident reports is a commercial one, a determination that Capitol Radio may appeal, it is entirely foreclosed from obtaining copies of the reports.
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:
Stephen J. MattinglyMary ChaudoinDeborah L. Shaw
Footnotes
Footnotes
1 KRS 189.635 was amended in 2007 and 2008 resulting in the renumbering of the pertinent provisions. Subsection (6) now appears as subsection (8). Those amendments do not alter the analysis in 02-ORD-19 or any other referenced authority.
2 Our conclusion in 13-ORD-025 was based on the Kentucky Court of Appeals' analysis in Capitol Resources Corporation v. Department of Kentucky State Police, 2007 WL 2332716 (Ky. App.), an unpublished opinion rendered on August 3, 2007, that may be cited for consideration if there is no published opinion that adequately addresses the issue. CR 76.28(4)(c). In Capitol Resources , the applicant submitted an affidavit stating that the requested accident reports would not be used for commercial purposes. Notwithstanding the existence of the affidavit, the court remanded the case "to establish whether Capitol requested the accident reports for commercial purposes." Capitol Resources at 10. Capitol Resources , above, was not litigated to a conclusion.
Capitol Radio included a similar affidavit with its request in which the affiant, President Joel W. Harris, stated that the accident reports would not be used for a commercial purpose. That affidavit is not wholly dispositive. As in Capitol Resources and 13-ORD-025, the city must meet its statutory burden of proof that Capitol Radio's intended use is or is not a commercial one. In the latter case, the city must release unredacted copies of the reports to Capitol Radio.
3 502 KAR 15:010 Section 5(1) and (2) authorize a $ 5.00 fee for paper copies of accident reports and a $ 10.00 fee for "reports obtained via the Kentucky State Police website."
4 In Capitol Resources , above, the Court of Appeals briefly addressed the propriety of redaction under KRS 189.635, remanding the question to the parties "to brief the issue" and the court to "make specific findings and conclusions in regard to that issue." Capitol Resources at 11. Concurring "with the result that this matter should be remanded to the trial court for additional findings as to the purpose for obtaining these traffic reports," Judge Wine "dissent[ed] as to any dicta which suggests the information could be redacted," based on his belief that KRS 189.635 does not "allow[] for any redactions," and suggested that "[i]t is the prerogative of the legislature to provide for such redactions just as it has under KRS 61.878(1)(a)." Id. As noted, that case was not litigated to a conclusion.