Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") properly relied on KRS 61.878(1)(l) and KRS 17.150(4) in denying Marla Wright's May 6, 2013, request for records and information concerning a National Crime Information Center ("NCIC") arrest warrant. For the reasons that follow, we conclude that the KSP did not violate the Open Records Act.
Ms. Wright addressed her May 6 request to KSP Headquarters, citing the federal Freedom of Information Act ("FOIA") 1 and the Kentucky Open Records Act. The request was as follows:
1. Please send all documents and records pertaining to the NCIC arrest warrant with extradition for Marla Wright received, sent, or communicated to or by the Kentucky State Police Morehead division from March 2012 to present.
2. Please send copies of all emails and written correspondence pertaining to the NCIC arrest warrant with extradition for Marla Wright received, sent, or communicated to or by the Kentucky State Police Morehead division from March 2012 to present.
3. Please sent [ sic ] a written account of all telephone conversations the Kentucky State Police Morehead division had with the Sheriff of Cobb County Georgia, Sergeant Claude Claunch during the week of 4/22/13, and a written account of any other telephone conversations with any other parties on any other dates, pertaining to the NCIC arrest warrant with extradition for Marla Wright received, sent, or communicated to or by the KSP Morehead division from March 2012 to present.
4. Please send a written account of who at the Cobb County Georgia Sheriffs [ sic ] office placed the NCIC arrest warrant with extradition into the NCIC system that caused the Kentucky State Police Morehead division to arrest Marla Wright on 3/30/13.
5. Please send a written account of who gave "the hit" for the arrest of Marla Wright on 3/30/13 pertaining to her NCIC arrest warrant with extradition from the Cobb County Georgia Sheriffs [ sic ] office to the Kentucky State Police Morehead division. 2
The request was received May 8, 2013, and on May 13, 2013, records custodian Emily M. Perkins responded:
Please be advised that your request for all other documentation [ sic ] is denied pursuant to KRS 17.150(4) centralized criminal history records (NCIC) are not subject to public inspection. Consequently, your request is denied in compliance with KRS 17.150(4) and 61.878(1)(l), which states that records made confidential by another Act of the General Assembly shall be exempt from the provisions of the Kentucky Open Records Act. Further, 502 KAR 30:060 states in pertinent part that: "An agency or individual shall not confirm the existence or nonexistence of CHRI [Criminal History Record Information] to any person or agency that would not be eligible to receive the information itself."
(Emphasis added.) Ms. Wright's appeal to the Attorney General was received on May 28, 2013.
On June 4, 2013, KSP Legal Counsel Graham Gray responded to the appeal, noting that "[a]ll the information or documents requested by Appellant pertain to use of the National Crime Identification [ sic ] Center (NCIC) computerized information system, which is confidential pursuant to 28 U.S.C. 534, and 28 C.F.R. 20.1-20.38." He additionally cited KRS 17.150(4):
Centralized criminal history records are not subject to public inspection. Centralized history records mean information on individuals collected and compiled by the Justice and Public Safety Cabinet from criminal justice agencies and maintained in a central location consisting of identifiable descriptions and notations of arrests, detentions, indictments, information, or other formal criminal charges and any disposition arising therefrom, including sentencing, correctional supervision, and release. The information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any proceeding related thereto. Nothing in this subsection shall apply to documents maintained by criminal justice agencies which are the source of information collected by the Justice and Public Safety Cabinet. Criminal justice agencies shall retain the document and no official thereof shall willfully conceal or destroy any record with intent to violate the provisions of this section.
Because of the applicable federal law, Mr. Gray asserted KRS 61.878(1)(k) as an additional basis for denial of the request.
The two cited subsections of KRS 61.878(1) exclude the following from the application of the Open Records Act:
(k) All public records or information the disclosure of which is prohibited by federal law or regulation;
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]
Both of these exceptions go beyond public records by extending to the protection of "information," which is highly pertinent in the present appeal.
First of all, we must deal with the KSP's citation to its administrative regulation, 502 KAR 30:060, Section 1, which forbids an agency to "confirm the existence ? or nonexistence of CHRI to any person ? that would not be eligible to receive the information itself." This constitutes a threshold issue because every item in Ms. Wright's open records request makes explicit reference to the "NCIC arrest warrant. " As such, in the context of the regulation, her request is a "loaded question" because any substantive response, either to provide records or to deny their existence, would be a potential confirmation of whether an NCIC arrest warrant existed. Therefore, if Ms. Wright were not entitled to view the NCIC record itself, the regulation would have the effect of prohibiting the KSP from either producing any responsive records or denying their existence.
Since we can find no previous decisions interpreting this provision of 502 KAR 30:060, this is a case of first impression. Ordinarily, the Open Records Act would require that the KSP either produce the responsive records or withhold them due to a specified exemption under KRS 61.878, or else assert that no responsive records exist. This regulation, however, purports to forbid an agency to make any substantive response to a request about CHRI from a person who is not entitled to obtain NCIC records. It is axiomatic that an administrative regulation, by itself, cannot "amend, alter, enlarge or limit the terms of legislative enactment."
Camera Center, Inc. v. Revenue Cabinet, 34 S.W.3d 39, 41 (Ky. 2000) (citing
Brown v. Jefferson County Police Merit Board, 751 S.W.2d 23 (Ky. 1988)). Thus, an administrative regulation cannot modify the Open Records Act by simply "purport[ing] to add a requirement not found in the statutes."
Com. v. Chestnut, 250 S.W.3d 655, 662 (Ky. 2008).
Since an administrative regulation cannot derogate from a statute on its own authority, we must consider whether 502 KAR 30:060, Section 1, is authorized by statute. We note that the statutory authority for this regulation includes KRS 17.150(6), which requires the Justice and Public Safety Cabinet to "adopt the administrative regulations necessary to carry out the provisions of the criminal history record information system. " Under KRS 17.150(4) , "[c]entralized history records mean information on individuals collected and compiled by the Justice and Public Safety Cabinet from criminal justice agencies and maintained in a central location...." (Emphasis added.) The statute thus protects not merely records in physical form, but the information they contain. Accordingly, we believe the promulgation of the regulation was within the authority conferred on the Cabinet by KRS 17.150(6).
"[T]his office will generally defer to the public agency in its interpretation of confidentiality provisions which are binding upon it." 05-ORD-186 (citing 98-ORD-78). Thus, in 10-ORD-164, we recognized the authority of the State Board of Accountancy's administrative regulation requiring accountants to "comply with the requirements of KRS 325.440 relating to the disclosure of confidential client information [and] KRS 325.420 relating to the ownership of accountant's working papers -- client records." Likewise, in 05-ORD-220, we followed the administrative regulation of the Department for Medicaid Services prohibiting specialized children's services clinics from disclosing clinic records without patient consent, in furtherance of the relevant confidentiality statute, KRS 620.050.
Although some decisions have not allowed an administrative regulation to impede access to public records, those have been cases in which the regulation in question was not implementing an applicable confidentiality statute.
Com. v. Chestnut, supra; 96-ORD-221 (Transportation Cabinet's regulation attempted to prohibit disclosure of ownership of corporations when that information was not made confidential by statute). Since the KSP's regulation was enacted pursuant to a specific confidentiality statute, and within the express regulatory authority of the Justice and Public Safety Cabinet, we defer to the agency's interpretation of KRS 17.150(4) as embodied in 502 KAR 30:060, Section 1.
As we stated in a 2011 decision concerning a request made by Kathy Gilliam to the Kentucky Department for Fish and Wildlife Resources:
KRS 61.878(1)(k) authorizes public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation [.]" This provision operates in tandem with 28 USC § 534 to prohibit a state agency such as KDFWR from disclosing criminal history record information. 28 USC § 534(a)(1) and (4) impose upon the United States Attorney General the duty to "acquire, collect, classify, and preserve identification, criminal identification, crime, and other records" and to "exchange such records and information with, and for the use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions." Pursuant to 28 USC § 534(b), "[t]he exchange of records and information authorized [by the foregoing provision] is subject to cancellation if dissemination is made outside the receiving departments or related agencies." Under this provision, KDFWR risks cancellation of its records exchange arrangement with the FBI if it releases [a felon's] NCIC information to Ms. Gilliam or anyone else other than authorized officials at KDFWR or "related agencies." KDFWR is therefore prohibited from providing Ms. Gilliam with a copy of the requested NCIC document.
11-ORD-057 (emphasis added; footnotes omitted). Again, since both "records" and "information" are covered by the applicable law, Section 1 of 502 KAR 30:060 can operate to limit the public's access to records which would disclose information contained in NCIC.
Under 28 CFR § 20.33(b), which implements 28 U.S.C. § 534(b), the availability of NCIC information to a participating criminal justice agency "is subject to cancellation if dissemination is made outside the receiving departments, related agencies, or service providers identified in ? this section." Nothing, however, "prevents a criminal justice agency from disclosing to the public factual information concerning the status of an investigation, the apprehension, arrest, release, or prosecution of an individual, the adjudication of charges, or the correctional status of an individual, which is reasonably contemporaneous with the event to which the information relates." 28 CFR § 20.33(c).
In this case, Ms. Wright was not seeking general "factual information concerning the status" of a criminal case, as permitted by the federal regulation, but rather was explicitly seeking information and records that were specifically tied to "the NCIC warrant" to which she consistently referred. Under these limited factual circumstances, 3 it appears that the KSP was justified in applying 502 KAR 30:060, Section 1, to refuse a substantive response to the open records request, since the dissemination of information about the NCIC records would potentially have jeopardized the KSP's access to NCIC. 4
We find that the KSP has sufficiently established the confidentiality of the underlying NCIC information. "Denial of access to centralized criminal history records maintained by KSP in the NCIC database has been approved in a series of open records decisions dating back to 1976." 06-ORD-128 ( see decisions cited therein). Furthermore, "information derived from the centralized system maintained by the KSP, or 'NCIC information,' which is not readily identifiable, remains confidential by operation of KRS 17.150(4) regardless of whether certain information mirrors that contained in the database of [a] local law enforcement agency and may be accessible from that source." 05-ORD-230.
Since Ms. Wright would not have been entitled to receive information from NCIC about an arrest warrant, the KSP was prevented by 502 KAR 30:060 from confirming the existence or nonexistence of such a warrant by stating whether records existed referring to the NCIC warrant. Thus, under the circumstances of this case and the applicable federal law incorporated into the Open Records Act by KRS 61.878(1)(k), and KRS 17.150(4) as incorporated by KRS 61.878(1)(l), the KSP properly withheld the records and information requested.
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 proceedings.
Distributed to:
Ms. Marla WrightMs. Emily M. PerkinsGraham Gray, Esq.
Footnotes
Footnotes
1 FOIA has no application to state agencies. 96-ORD-244; OAG 91-56; OAG 83-256.
2 For purposes of this appeal, we assume that the "written accounts" of the information Ms. Wright requested in items 3, 4, and 5 actually exist. If they do not, there is no obligation for the KSP to create such records. See, e.g., OAG 89-45 (the Open Records Act "does not require public agencies to carry out research or compile information to conform to a given request"); OAG 76-375 (public agencies "are not obligated to compile a list or create a record to satisfy an open records request").
3 The rarity of instances in which this provision of 502 KAR 30:060 would operate to prevent a substantive response to an open records request is attested by the fact that we have never been confronted with this issue before, even though the provision has been in the regulation since it was first promulgated in 1985.
4 We note, however, that the KSP's initial response should have cited KRS 61.878(1)(k) and the applicable federal law along with KRS 61.878(1)(l) and 17.150(4).