Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in its disposition of Lawrence Trageser's November 7, 2017, request for records concerning four individuals employed by KSP. For the reasons that follow, we find KSP partially violated the Act.
Mr. Trageser's November 7 letter requested inspection of "any and all documents reflecting the following":
1. The personnel file of KSP dispatcher Amy Earlywine, this file should include but is not limited to any resignation letters, termination letters, disciplinary actions and internal affairs investigations .
2. The personnel files of Captain Don Wilson, Todd Harvard and Jake Guffy, these files should include but are not limited to any resignation letters, termination letters, disciplinary actions and internal affairs investigations . (Emphasis added.) On November 14, 2017, KSP indicated that it was contacting the employees to offer them an opportunity to make any objections to disclosure under Beckham v. Bd. of Educ. of Jefferson Cnty., 873 S.W.2d 575 (Ky. 1994), and would otherwise release the records by November 22, 2017. Mr. Trageser did not object to this procedure.
KSP issued a final disposition on November 22, 2017, the substantive portion of which read as follows:
You requested a copy of the personnel file and any internal affairs complaints and dispositions pertaining to Amy Earlywine, Captain Don Wilson, Todd Harwood, and Jake Guffy pursuant to the provisions of the Kentucky Open Records Act. Copies of these documents have been obtained and will be released to you upon payment of the appropriate fees. Certain information (DOBs, SSNs, addresses, phone numbers, etc.) contained in this report will be redacted pursuant to KRS 61.878(1)(a) as disclosure of this information would constitute a clearly unwarranted invasion of personal privacy.
(Emphasis added.) This response, on its face, fails to address completely Mr. Trageser's request for "internal affairs investigations" by treating the request as if it were limited to "internal affairs complaints and dispositions." Failure to address a portion of an open records request is a violation of the Act. 17-ORD-247; 14-ORD-013; see also 05-ORD-176 ("failure to respond to an open records request is tantamount to a denial of the request without specific basis").
In his appeal, received in this office on January 3, 2018, Mr. Trageser complains that no Internal Affairs ("IA") investigations were provided for Lt. Todd Harwood or Captain Donald Wilson, and that the initiating complaints and final dispositions that were provided for their cases were lacking in "details." He further alleges that "at least one known document was missing from former Post 12 dispatcher Amy Earlywine's personnel file, a letter dated around August-September 2017, stating that she had been placed on administrative leave with pay."
In a response to the appeal dated January 10, 2018, KSP Staff Attorney Cody Weber states in pertinent part:
Kentucky State Police provided the Appellant an opportunity to inspect the personnel file and any internal affairs complaints and dispositions that exist pertaining to Amy Earlywine, Captain Don Wilson, Todd Harwood and Jake Guffy.
The Kentucky State Police is currently in litigation regarding the Kentucky State Police's release of entire Internal Affairs investigative files. That case is currently on appeal with the Kentucky Court of Appeals (No. 2017-CA-750). The subject of that appeal involving the release of entire Internal Affairs investigative files is the same subject of this current appeal pertaining to the above listed individuals. As such, the Kentucky State Police will not be releasing the entire Internal Affairs investigative files until litigation has concluded and is [ sic ] ordered to do so.
Beyond the entire Internal Affairs investigative files, the Appellant asserts that other records matching his request were not included in the inspected records. As to these records, please be advised that a search of Kentucky State Police records was conducted and no records were found.
At no time in this open records matter, before or since the filing of this appeal, has KSP offered its statutory basis for limiting inspection of completed IA investigations to the initiating complaint and final disposition alone.
Pursuant to KRS 61.880(1), "[a]n agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " Failure to specify an applicable exception under KRS 61.878, or to explain its application, in an agency response is a procedural violation of the Open Records Act. 14-ORD-036. Furthermore, where no exception is ever cited in support of a denial of inspection, a public agency has failed to meet its burden of proof to sustain its action under KRS 61.880(2)(c). 17-ORD-101. 1
With regard to the letter that Mr. Trageser alleges to be missing from Ms. Earlywine's personnel file, a public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Since Mr. Trageser "has produced no affirmative evidence, beyond mere assertions, that the KSP possesses" such a letter, "we do not have a sufficient basis on which to dispute the KSP's representation" that no such record exists. 09-ORD-129.
With regard to KSP's redactions of personal identifying information such as dates of birth, Social Security numbers, home addresses, and personal phone numbers, it has been established for some time that such "discrete types of information routinely included in an agency's records and routinely implicating similar grounds for exemption" may be categorically redacted on the basis of personal privacy under KRS 61.878(1)(a). 17-ORD-269 (quoting
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 89 (Ky. 2013)). Therefore, we find no error in the redaction of those categories of information on that basis. 2
Finally, to the extent Mr. Trageser complains that the initiating complaints and final dispositions of IA matters did not contain sufficient "details," we cannot find a violation of the Open Records Act. The Act is concerned with inspection of records, and does not require records with specific content to be created. 95-ORD-131. Accordingly, we find that KSP violated the Act only to the extent that it withheld from inspection the remainder of the IA records without explanation or statutory justification.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 The fact that litigation is pending in another case involving a similar issue has no effect on our disposition of an open records appeal. 18-ORD-001.
2 In so finding, we presume that the "etc." appended to the KSP's list of redactions under KRS 61.878(1)(a) refers only to similar categories of data which have been recognized by this office as proper for categorical redaction. If the meaning of "etc." is not so limited, its use by KSP is an insufficient explanation under KRS 61.880(1).