Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Lawrence Trageser appeals the Spencer County Sheriff's Department's partial denial of his December 9, 2015, request to inspect "all records reflecting all initial or 'FIRST TIME' identification cards created by the Spencer County Sheriff's Department, since January 1, 2013, for their employees and staff as well as employees of Spencer County Government" and the employees' "spouses, family, members, volunteers, special deputies, and non-employees." Mr. Trageser limited his request to identification cards created on "the new identification card machine bought by the Spencer County Fiscal Court."
The Department issued a timely written response in which it advised Mr. Trageser that "[t]he records [he] requested for inspection are ready for review." As noted, those records consisted of the most recently created identification cards for an employee of Spencer County Fiscal Court Alcohol Beverage Control, a county magistrate, and a deputy sheriff. The Department provided no further explanation in its original response.
On appeal, Mr. Trageser questions the Department's inability to provide additional identification cards, noting that in discussions with a representative of the Department he learned that "when a new I.D. card is created, that process erases the latest I.D. card production held on the machine. " He objects to the Department's inability to produce past I.D.s that are responsive to his request, asserting that under records management guidelines, the past I.D.s should not have been deleted.
Responding to Mr. Trageser's appeal, the Sheriff's Department confirms that he was orally advised that the identification card maker "only retains the last identification card that was produced" on each of the templates. Further, the Department indicates that a representative "contacted the Kentucky Department for Libraries and Archives and was advised there is no records retention requirement for identification cards. " The Spencer County Sheriff's Department did not violate the Open Records Act by producing the three existing identification cards, but its inability to produce responsive identification cards previously created on the card making device raises a records management issue that we refer to the Kentucky Department for Libraries and Archives for action that agency deems appropriate.
The identification card of a public official or employee is a public record as defined in KRS 61.870(2). That expansive definitional section includes all "photographs" and "cards" that are "prepared, owned, used, in the possession of or retained by a public agency." Although there are no known Kentucky cases addressing the status of identification cards as public records, the cards are clearly "prepared" by public agencies for "use" in identifying officials and employees and enabling officials and employees to gain access to certain public buildings. Accord,
State ex rel. Plain Dealer Publishing Company v. City of Cleveland, 831 N.E. 29 987 (Ohio 2005) (determining that police identification cards are public records under Ohio's public records act, but the records are shielded from disclosure by O.R.C. 149.43(A)(7)(b), exempting "[a]ny record that identifies a person's occupation as a peace officer"). 1
Because identification cards are public records as defined in KRS 61.870(2) and KRS 171.410(1), their retention and destruction are governed by records schedules that are reviewed and approved by the State Archives and Records Commission and promulgated into regulation at 725 KAR 1:061; 171.420(3). The Department correctly notes that identification cards have not been scheduled for retention and destruction by the Commission, but draws the incorrect inference that such records can be destroyed at will. In a line of open records decisions, this office has determined that unscheduled records must be retained by the agency until scheduled by the Archives and Records Commission and their retention period fixed by law. 04-ORD-040 (recognizing that certain law enforcement records were unscheduled public records that "as such should be retained by the agency until a retention schedule is established for them"). Open records appeals in which records retention issues are presented are routinely referred to the Department for Libraries and Archives pursuant to KRS 61.8715. 2
In 08-ORD-138, we underscored the language found at KRS 171.170 in reaffirming this position. That statute requires the head of each state and local agency to:
establish such safeguards against removal or loss of record as he shall deem necessary and as may be required by rules and regulations issued under authority of KRS 171.410 to 171.740. Such safeguards shall include making it known to all officials and employees of the agency that records are to be alienated or destroyed except in accordance with law, and calling their attention to the penalties provided by law for the unlawful removal or destruction of the records.
08-ORD-138 (holding that accreditation records, if unscheduled, "should [have been] retained by the agency until a retention schedule is established for them" and citing 04-ORD-040 and 07-ORD-182); see also 13-ORD-068, note 2. Because retention and destruction of identification cards has not been fixed by law, in the form of a records series appearing on a retention schedule promulgated into regulation, the destruction of the records raises a records management issue that is referred to the Kentucky Department for Libraries and Archives for the action deemed appropriate by that agency.
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
1 We do not determine whether, in any or all cases, identification cards are protected from disclosure by Kentucky's open records exemptions inasmuch as that issue is not before us.
2 The intent of the Open Records Act is statutorily linked to the intent of Chapter 171, relating to retention and management of public records, at KRS 61.8715. The General Assembly has thus recognized "an essential relationship" between the laws.