Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Erlanger Police Department violated, or subverted the intent of, the Open Records Act in the disposition of Glenn R. Davis's February 9, 2014, request for "a copy of 'The Ky. Collision Report[,]' the traffic wreck report" for the February 5, 2014, accident on Dixie Highway to which Mr. Davis was a party and the "police offense/incident report . . . that a patrolman wrote up that starts an investigation into the matter." Having received no written response to his request, Mr. Davis initiated this appeal by letter dated February 23, 2014.
Upon receiving notification of his appeal, the Department advised Mr. Davis, by letter dated March 3, 2014, that upon receipt of his request for a copy of "accident report # 0314001861" a written response was mailed to him indicating that he "could obtain the report one of two ways. First, you could go to www.buycrash.com and get a copy for $ 10.00 or second, you could send us a check for $ 15.00 and a self[-]addressed stamped envelope and we would mail you a copy of the report." 1 The Department enclosed an invoice for the requested accident report and further advised that a copy would be mailed upon receipt of payment. However, the Department advised that it could "find no other reports in our system with your name. If you can give us more information about this other report we can search further. Please call and we will see what we can locate. " Based upon the following, this office finds that $ 15.00 is an excessive fee, imposition of which subverted the intent of the Act within the meaning of KRS 61.880(4); however, the Department cannot produce a nonexistent offense/incident report for inspection or copying and its disposition of the request is otherwise affirmed.
The Department agreed to provide Mr. Davis with a copy of the accident report identified as No. 0314001861 per KRS 189.635, which expressly governs the accessibility of such records. In relevant part, KRS 189.635 provides:
(5) All accident reports filed with the Department of Kentucky State Police in compliance with subsection (4) above shall not be considered open records under KRS 61.872 to 61.884 and shall remain confidential except that the department may disclose the identity of a person involved in an accident when his or her identity is not otherwise known or when he or she denies his or her presence at an accident. Except as provided in subsection (9) of this section, all other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (8) of this section. These reports shall be made available only to the parties to the accident , the parents or guardians of a minor who is party to the accident, and insurers or their written designee for insurance business purposes of any party who is the subject of the report, or to the attorneys of the parties.
(8) The report shall be made available to a news-gathering organization, solely for the purpose of publishing or broadcasting the news. The news-gathering organization shall not use or distribute the report, or knowingly allow its use or distribution, for a commercial purpose other than the news-gathering organization's publication or broadcasting of the information in the report. A newspaper, periodical, or radio or television station shall not be held to have used or knowingly allowed the use of the report for a commercial purpose merely because of its publication or broadcast.
(Emphasis added.) In construing these provisions, the Attorney General has observed:
KRS 189.635(5), in tandem with KRS 61.878(1)(l), requires that a public agency deny a request for copies of accident reports not submitted by parties to the accident, the parents or guardians of a minor who is party to the accident, the insurers of any party who is the subject of the report, the attorneys for the parties, and news gathering organizations "solely for the purpose of publishing or broadcasting the news." KRS 189.635(8). This specific confidentiality provision overrides the general rule of openness mandated by the Open Records Act.
06-ORD-024, p. 5 citing 02-ORD-155, p. 4. KRS 189.635 recognizes only the specifically enumerated exceptions found in the concluding sentence of KRS 189.635(5) and in KRS 189.635(8). Here, Mr. Davis, a party to the accident, was entitled to a copy of the accident report per KRS 189.635(5) and the Department properly agreed to provide him with a copy upon receipt of payment. See 13-ORD-147; compare 13-ORD-019. Accordingly, the question becomes whether the Department subverted the intent of the Open Records Act in charging Mr. Davis $ 15.00 for the requested copy.
KRS 189.635(7) authorizes the Kentucky State Police to "promulgate administrative regulations in accordance with KRS Chapter 13A . . . to set out a fee schedule for accident reports made available pursuant to subsections (5), (8), and (9)" of that provision. 2 Those regulations are codified at 502 KAR 15:010, Section 5 of which provides that authorized parties may obtain Vehicle Accident Reports upon payment of a five (5) dollar fee for "Paper copies" and a ten (10) dollar fee for "Reports obtained via the Kentucky State Police website." Neither the statute nor the regulation extends authority to KSP, or any other agency, to charge a fee of $ 15.00. See 13-ORD-147 (agency subverted the intent of the Act by imposing an excessive fee of $ 10.00 to provide a copy of the requested accident report as 502 KAR 15:010, Section 5 only authorized a fee of $ 5.00 for the report itself, and if the report did not include requested photographs, the agency was required to recalculate its copying fee to conform to KRS 61.874(3) in the absence of any evidence to substantiate that its actual cost of reproduction equaled $ 10.00). The Department did not cite 502 KAR 15:010, but seemingly relied upon Section 5 in advising Mr. Davis of his right, in the alternative, to obtain a copy online from KSP for a fee of $ 10.00. In any event, imposition of a $ 15.00 fee was impermissible and constituted a subversion of the intent of the Act, short of denial, and within the meaning of KRS 61.880(4). The remaining question is whether the Department violated the Act in denying Mr. Davis's request for a "police offense/incident report."
A public agency such as the Department cannot produce that which it does not have nor is the agency required to "prove a negative" in order to refute a claim that a certain record(s) exists in the absence of a prima facie showing by the requester. See
Bowling v. Lexington Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005); 07-ORD-188; 07-ORD-190; compare
Eplion v. Burchett, 354 S.W.3d 598, 604 (Ky. App. 2011) (declaring that "when it is determined that an agency's records do not exist, the person requesting the records is entitled to a written explanation for their nonexistence"); 12-ORD-195. The record on appeal is devoid of any showing and the right to inspect records only attaches if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205; 07-ORD-190. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that no such records exist and explaining why if appropriate. On many occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 99-ORD-98; 09-ORD-029; 11-ORD-069. Under the circumstances presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2. Rather, KRS 61.880(2)(a) narrowly defines our scope of review.
However, in order to ensure that the Open Records Act is not "construed in such a way that [it] become[s] meaningless or ineffective," Bowling, above, at 341, this office has recognized that "the existence of a statute, regulation, or case law directing the creation of the requested record" creates a rebuttable presumption of the record's existence at the administrative level, which a public agency can overcome "by explaining why the 'hoped-for record' does not exist." 11-ORD-074, p. 4; 12-ORD-038. No such authority has been cited here. Assuming the Department made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the record(s) requested," it complied with the Act, regardless of whether the search yielded any results, in affirmatively indicating that no records were located. 3 05-ORD-109, p. 3; 01-ORD-38; OAG 91-101. See 11-ORD-091 (appellant did not cite, nor was the Attorney General aware of, "any legal authority requiring agency to create or maintain" the records being sought from which their existence could be presumed under 11-ORD-074); 11-ORD-118.
Because Mr. Davis "produced no affirmative evidence, beyond mere assertions, that the agency possesses [the report] he has requested, we do not have a sufficient basis on which to dispute the agency's representation that no such record[] exist[s]." 09-ORD-214, pp. 3-4; see 07-ORD-033. In the absence of the requisite prima facie showing, or any evidence to suggest that such a report was created or maintained, the agency's disposition of Mr. Davis's request is affirmed in this regard.
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:
Glenn R. DavisRobert L. ArensMissy AndressFrank Wichmann
Footnotes
Footnotes
1 The Department failed to include a copy of its original written response. On two separate occasions, March 21 and March 24, 2014, this office left a voicemail message asking the Department to forward a copy via facsimile transmission but did not receive any response. In the absence of any evidence from either party confirming the date when the Department actually received the request and/or mailed its written response, this office is unable to conclusively determine whether the agency discharged its procedural duties under the Act. If the Department issued a written response within three days of when the request was actually received, excluding weekends and holidays, it complied with KRS 61.880(1); conversely, if the Department failed to mail a written response within the statutory time frame, it violated KRS 61.880(1).
2 Where two statutes address the same subject, "the specific shall prevail over the general." City of Bowling Green v. Board of Education of Bowling Green, Ky., 443 S.W.2d 243, 247 (1969). Accordingly, KRS 189.635(7) and the corresponding regulation prevail in this context over KRS 61.874, a statute of general application. See 10-ORD-010 (KRS 61.880(1) only applies in the absence of any other applicable statutory deadline for agency response whereas KRS 197.025(7) is a specific provision establishing the deadline by which the Department of Corrections and facilities under its jurisdiction are required to respond to requests made under the Act).
3 In assessing the adequacy of an agency's search we 'need not go further to test the expertise of the agency, or to question its veracity, when nothing appears to raise the issue of good faith.'" 95-ORD-96, p. 7, citing Weissman v. Central Intelligence Agency, 565 F.2d 692, 697 (D.C. Cir. 1977). However, the Department should have also specifically identified the steps taken to identify and locate any such records per the standard of 95-ORD-96.