Opinion
Opinion By: Andy Beshear, Attorney General; Gordon Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Lexington Police Department ("Police Department") violated the Open Records Act in its disposition of Brian Engle's ("Appellant") open records request for records related to a person he was investigating. For the reasons stated below, we find that the Police Department did not violate the Act.
Appellant, a private investigator, made a request to the Police Department for copies of records of arrests, incidents, complaints, or investigative reports concerning Tayler Marie Maddox. Appellant requested:
1. DUI arrest occurring on October 15, 2015;
2. Probation violation arrest in April 2016;
3. Complaint of subject Maddox against Scott Guy Mason, for assault or Hit and Run occurring on approximate dates of 2015-2016 and;
4. Possible other complaint against subject Maddox for break in occurring approximately 2016.
Item 1 . The Police Department responded on March 19, 2018, explaining that it was not the records custodian for the traffic related arrest of Ms. Maddox on October 15, 2015, and referred Appellant to the University of Kentucky Police Department for those records. Appellant did not appeal this response regarding the DUI arrest of October 15, 2015.
Item 2 . Regarding the probation violation of April 2016, the Police Department provided the dispatch log and corresponding citation regarding "incident 2016-60492," but stated that there was no report associated with that incident. Appellant appealed the response as he believes it is "unlikely that there would be no other record."
On May 14, 2018, Michael Sanner, Attorney Senior, Department of Law, responded to the appeal on behalf of the Police Department. Regarding Item 2, Mr. Sanner explained that a citation and dispatch log were provided referencing the incident. "There was no corresponding report with that incident and therefore no other documents exist regarding that incident." Mr. Sanner referenced past open records decisions of this Office, 00-ORD-04, 99-ORD-071, 01-ORD-216, for the proposition that a public agency does not need to provide documents that do not exist. He stated that there are no additional documents responsive to Appellant's request.
Analysis - Item 2 . Appellant believes that additional records must exist that were not provided by the Police Department. With respect to factual disputes of this nature between a requester and a public agency, this Office has consistently recognized that it cannot "adjudicate a dispute regarding a disparity, if any, between records for which inspection has already been permitted, and those sought but not provided." 03-ORD-61, p. 2 (citing OAG 89-81, p. 3). The record on appeal does not contain sufficient information for this office to resolve the factual dispute between the parties regarding the disparity between records which have been provided, and those believed to exist by Appellant. Accordingly, the parties should continue to consult and mutually cooperate to resolve any differences or misunderstandings related to the requested records.
Item 3 . In response to Item #3, regarding a "complaint of subject Maddox against Scott Guy Mason, for assault or Hit and Run occurring on approximate dates of 2015-2016," the Police Department initially responded that it was unable to locate the remainder of the requested documentation based upon the information provided, and referred to prior decisions of this Office, 00-ORD-04, 99-ORD-071, and 01-ORD-216, as authority that a public agency is not required to provide records that do not exist.
On appeal, Appellant provided a Traffic Collision Report, dated 03/08/2014, for an incident involving Ms. Maddox. He also provided a screen shot which appears to be a jail record showing a photograph of what purports to be Ms. Maddox for "burglary 2nd" with an arrest date of December 8, 2014. Appellant's apparent purpose in providing these records was to show that additional records do exist in regards to this request and that the Police Department should have provided those records.
In response to the appeal, Mr. Sanner stated that, "based on the documents Mr. Engle attached to his appeal, an incident was found that occurred in 2014, outside the dates of his original request. " He explained that "Ms. Maddox was a pedestrian involved in a hit and run accident. Collision reports are not indexed by pedestrian name but by the name of the driver. There is a collision report involving Mason Scott Guy as the driver that occurred in 2014. Since the collision report was outside the scope of Mr. Engle's original request it could not be found until Mr. Engle supplemented the information in his appeal." Mr. Sanner stated that the collision report is exempt from production to Appellant pursuant to KRS 189.635(5). 1 That statute provides, in pertinent part, that accident reports are "not considered open records" and are confidential and made available only to the parties of the accident, parents or guardians of a minor who is a party to the accident, insurers or insurance companies or the attorneys of the parties. "Since [Appellant] does not fall into any of those categories to receive the collision report it is exempt from inspection. "
Analysis - Item 3 . The initial denial by the Police Department was based on the information and dates provided by Appellant. On appeal, Appellant provided additional information which reflected that the time period of the request was incorrect. The information Appellant provided on appeal showed that the hit and run incident occurred in 2014, rather than the time period of "2015-2016" initially provided. In general, a requester who sends a request to an agency, and wishes to have records sent to him, must "precisely describe" the records requested and they must be readily available within the agency. 17-ORD-181, pp. 4-6; 18-ORD-068; 17-ORD-197. The Police Department's initial denial was not in error as Appellant did not precisely describe the records he was requesting.
On appeal, the Police Department denied the request based on KRS 189.635(5). In construing this statute, 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. 2
06-ORD-024, p. 5 (citing 02-ORD-155, p. 4).
As Appellant did not meet the exceptions 3 to the statute, the Police Department's denial was proper.
Item 4 . Item 4 requested "[p]ossible other complaint against subject Maddox for break in occurring approximately 2016." The Police Department responded that it was "unable to locate" the records and again relied on open records decisions of this Office that state that an agency does not have to provide records that do not exist. Mr. Sanner explained that, with the information submitted in the appeal, the Police Department conducted an extensive search which indicated that records regarding the referenced incident had been expunged at the direction of a court order. Mr. Sanner referenced KRS 431.076(6), which provides:
After the expungement, the proceedings in the matter shall be deemed never to have occurred. The court and other agencies shall delete or remove the records from their computer systems so that any official state-performed background check will indicate that the records do not exist. The court and other agencies shall reply to any inquiry that no record exists on the matter . The person whose record is expunged shall not have to disclose the fact of the record or any matter relating thereto on an application for employment, credit, or other type of application. (Emphasis added.)
Mr. Sanner stated, "By statute this matter is deemed to have not occurred and the statutory required response is that no records exist regarding any request for said records."
Analysis - Item 4 . We agree with the Police Department that the denial of the existence of the expunged records was proper and in accordance with KRS 431.076(6). 16-ORD-125, p. 3.
In conclusion, we find no violation of the Open Records Act by the Police Department in its responses to Appellant's requests for records.
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