Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Neil Gilreath appeals the Boone County Sheriff's denial of his August 18, 2015, request for copies of, inter alia , investigative reports, traffic crash reconstruction reports, witness and victims statements, audio and video tapes of police interviews, and dash cam video relating to an accident identified by date, time, and case number. Mr. Gilreath's request was submitted on Focus Investigations, LLC, letterhead, but he did not indicate that he was a party to the accident, the parent or guardian of a minor who was a party to the accident, the insurer, or the insurer's "written designee, " of a party to the accident, the attorney for a party to the accident, or a news-gathering organization whose intended use was limited to publishing or broadcasting the news. KRS 189.635(5). On August 24, the Boone County Sheriff denied Mr. Gilreath's request. In support, the sheriff cited KRS 61.878(1)(1), 1 incorporating KRS 189.635(5), restricting access to accident reports. KRS 189.635(5) provides:
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.
Mr. Gilreath subsequently appealed the sheriff's denial arguing that, although the accident report itself is shielded from disclosure by KRS 189.635(5), "the supporting investigatory documents generated by the agency . . . are not a part of the Kentucky State Police "CRASH" reporting systems . . ." and are therefore not excluded from public inspection.
Upon receipt of notification of Mr. Gilreath's appeal, the Boone County Sheriff notified this office that "the only document requested that exists is the traffic accident report required to be filed with Department of Kentucky State Police pursuant to KRS 189.635." In the absence of investigative document supporting the accident report, the Boone County Sheriff was not legally obligated to advance an argument supporting denial of responsive records. The sheriff discharged his legal obligation under KRS 61.880(1) by advising Mr. Gilreath, albeit belatedly, that it maintained no responsive records. See, e.g., 15-ORD-018 (recognizing that a public agency cannot produce a nonexistent record for inspection or copying but is required to notify the requester, in writing, that no responsive record exists). A copy of 15-ORD-018 is enclosed and its reasoning adopted in full.
Although it is unclear whether Mr. Gilreath's request encompassed the accident report itself, 2 the Boone County Sheriff advanced a legally persuasive argument to support denial of the intended or unintended request. The Sheriff properly relied on KRS 189.635(5) in denying Mr. Gilreath access. As noted, that statute restricts access to accident reports as to anyone other than identified classes of individuals. In the absence of proof that Mr. Gilreath was a party to the accident, is the parent of a party to the accident, is the insurer or insurer's designee for a party to the accident, an attorney for a party, or a representative of a news-gathering agency, we affirm the Boone County Sheriff's denial of his request to the extent it extends to the accident report. This position finds support in 02-ORD-155 and 06-ORD-028, copies of which are enclosed. The sheriff relied on these open records decisions in asserting that an accident report is, in general, shielded from disclosure by KRS 189.635(5). We agree.
Either party may appeal this decision 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.
Footnotes
Footnotes