Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Hopkinsville Police Department ("HPD") violated the Kentucky Open Records Act ("Act") in the disposition of a request submitted by Shannon Hills ("Appellant") of the Hughes and Coleman law offices ("Hughes and Coleman"). For the reasons stated below, we find that HPD violated the KRS 61.880(1) when it failed to issue a timely written response to the request, and when it failed to include in its denial a statement of the specific statutory exception authorizing the withholding of responsive accident reports. However, HPD properly withheld copies of accident reports, pursuant to KRS 189.635(5), incorporated into the Act by operation of KRS 61.878(1)(l), because the requesters were not parties authorized to receive copies. HPD had no duty to redact accident reports under KRS 61.878(4) because KRS 189.635(5) provides a blanket exemption to the disclosure of protected records.
On August 30, 2019, Appellant submitted an open records request with HPD seeking copies of "any and all auto collisions during the last 36 months at the Piggly Wiggly on N Main St." Appellant provided with her request the name of her client and an email address for responses. On September 6, 2019, HPD received the request but did not respond in writing or by email. HPD called Appellant by telephone and left a message stating the department intended to deny her request pursuant to KRS 189.635(5). On September 12, 2019, HPD called Appellant a second time and told her, "the request would be denied, as the accident report was excluded, pursuant to KRS 189.635(5)." HPD did not issue a written denial until 18 days later on September 19, 2019. HPD emailed a written denial stating, "[p]er KRS 189.635(5) only person(s) involved, their representative insurance/attorneys, or a legal guardian of a juvenile can obtain a copy of a collision report. We can only release these collision reports with a properly executed subpoena or court order."
On September 20, 2019, Attorney Judy S. Brown of Hughes and Coleman appealed the denial on Appellant's behalf, asking that this office determine whether "the request was rightly denied, and whether [HPD] should provide the requested records in a redacted form." On September 27, 2019, HPD responded to the appeal, providing this office and Appellant a copy of a responsive accident report in which Appellant's client was a party to the accident. HPD defended its denial of any additional responsive accident reports arguing that the Appellant's request "would necessarily include reports, involving individuals other than the clients of the requesting party[,]" and "the requesting party was not a party to the accident." As such, HPD's denial was functionally a denial based on the nonexistence of additional accident reports to which Appellant was entitled to receive a copy under KRS 189.635(5). However, HPD did not affirmatively state that it possessed no additional responsive accident reports in which Appellant's client was a party to the accident. 1
On October 1, 2019, this office contacted HPD seeking clarification and a supplement to the appeal response, pursuant to KRS 61.880(2)(c) 2and 40 KAR 1:030, Section 3. In order to satisfy the burden of proof imposed on a public agency per KRS 61.880(2)(c), we asked that HPD affirmatively indicate whether additional responsive records existed in its possession in which Appellant's client was a party to an accident. See 99-ORD-150 (a public agency cannot afford a requester access to records which do not exist, and the agency discharges its duty under the Act by affirmatively so stating). We also asked that HPD provide a description of its search for accident reports in which Appellant's client was a party to the accident. See
Eplion v. Burchett , 354 S.W.3d 598, 604 (Ky. App. 2011)("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); 04-ORD-075; 12-ORD-195.
On October 10, 2019, HPD sent this office and Appellant a supplemental response that affirmatively stated no additional responsive records existed in its possession in which Appellant's client was a party to the accident. HPD described the search for responsive records stating "Captain Erik Pacheco searched by name, date of birth, and activity in the Department's Record Management System. The only collision report regarding [Appellant's client] at the requested location was the accident report dated August 17, 2019, which had already been provided[.] No other accident reports existed within the 36-month time frame at Piggly Wiggly related to [Appellant's client]." HPD stated it also searched collision reports in KYOPS, but responsive accident report in addition to those already provided to Appellant did not exist in the database. HPD stated it called Appellant on September 6, September 12, and September 18 and explained the reasons for denying her request, but confirmed that it did not email a written response until September 19, 2019.
HPD Violated the Procedural Requirements of KRS 61.880(1) . HPD responded to Appellant's requests by telephone, but violated the Act by failing to issue a timely written response. In relevant part, KRS 61.880(1) provides that upon receipt of a request, a public agency "shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays . . . whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period of its decision." (Emphasis added). In construing the language of KRS 61.880(1), the Kentucky Court of Appeals stated, "[t]he language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents."
Edmondson v. Alig , 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208; 06-ORD-190; 17-ORD-179. The Attorney General has consistently recognized that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125; 05-ORD-190; 09-ORD-186; 12-ORD-085; 15-ORD-152. Thus, a response is required within three business days, and the public agency must deliver that response in writing, or by email as consented to by Appellant. See 07-ORD-033, p. 2. Accordingly, HPD procedurally violated the Act when it failed to issue a timely written response.
HPD also violated KRS 61.880(1) by failing to cite the specific statutory basis for withholding the responsive accident reports, and it did not correct the error on appeal. HPD identified KRS 189.635(5) as the statutory exception authorizing the withholding of responsive records. However, HPD failed to reference 61.878(1)(l), 3which incorporates KRS 189.635(5) into the Act. A public agency must cite the applicable statutory exceptions, if any, and provide a brief explanation of how the exceptions apply to the records withheld, to satisfy its burden of justifying its denial. KRS 61.880(2)(c); 04-ORD-106, p. 6; 03-ORD-045. Absent reference to KRS 61.878(1)(l), and absent an explanation of how the statute applied to the records withheld, HPD's responses to Appellant's request lacked the specificity required by KRS 61.880(1).
HPD Properly Withheld Copies of Accident Reports Because the Requesters were not Entitled to Receive Copies . Regarding the substantive issue of this appeal, we find that HPD properly withheld copies of accident reports in which Appellant and her client are not parties to the accident, pursuant to KRS 189.635(5), incorporated into the Act by operation of KRS 61.878(1)(l). 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.
06-ORD-024, p. 5 (citing 02-ORD-155, p. 4).
On appeal, HPD provided Appellant a copy of a responsive accident report in which her client was a party to the accident, and indicated that no additional responsive accident reports existed. The record establishes that HPD conducted a reasonable search and provided Appellant copies all responsive accident reports in its possession in which Appellant's client was a party to the accident. On appeal, HPD provided evidence of "a good faith effort to conduct a search using methods which would reasonably be expected to produce the records requested." "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)). "Absent proof that [HPD] failed to use methods which could reasonably be expected to produce the records requested," this office has no basis upon which to question the agency's good faith notwithstanding its failure to locate additional responsive records. See 12-ORD-153, p. 4.
A public agency cannot provide a requester with access to nonexistent records or those which it does not possess. 07-ORD-190, p. 6; 06-ORD-040. Nor is a public agency required to "prove a negative" in order to refute an unsubstantiated claim that certain records exist in the possession of the agency. See
Bowling v. Lexington-Fayette Urban Cty. Gov't , 172 S.W.3d 333, 341 (Ky. 2005)("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"); 11-ORD-091. As such, Appellant must make a prima facie showing that she is legally entitled to receive additional accident reports under an exception to the KRS 189.635(5) exemption.
Evidence exists in the record that Appellant and her client qualify for the KRS 189.635(5) exception applicable to parties to an accident. However, Appellant did not provide any evidence that those exceptions to the KRS 189.635(5) exemption apply to her client or to her law office. Therefore, Appellant failed to prove that she and her client were entitled to receive accident reports under any KRS 189.635(5) exception, other than that for a party to the accident. Accordingly, HPD did not violate the Act when it denied access to accident reports based on the other KRS 189.635(5) exceptions.
KRS 189.635(5) Provides a Blanket Exemption to the Disclosure of Protected Accident Reports . HPD did not violate KRS 61.878(4) when it declined to redact accident reports Appellant was not legally entitled to receive and make nonexcepted material available for inspection. This office has found that KRS 61.878(4) applies to all public records in which exempt and nonexempt information is commingled. 06-ORD-214. However, KRS 189.635(5) provides a blanket shield of copies of accident reports from disclosure under the provisions of the Act unless the requesting party meets one or more of the exceptions stated in the statute. 03-ORD-188; 06-ORD-024; 18-ORD-106. The record on appeal shows that Appellant was legally entitled to receive copies of accident reports to which her client was a party to the accident. However, Appellant provided no evidence that she was entitled to receive copies of responsive accident reports under any of the other KRS 189.635(5) exceptions. Further, Appellant did not affirmatively state that she and her client were entitled to receive accident reports under any of the other KRS 189.635(5) exceptions. HPD has no duty under KRS 61.878(4) to redact and disclose nonresponsive records or records to which the requester is not entitled to receive by law. Accordingly, HPD did not violate KRS 61.878(4).
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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 Appellant's request did not state that the named client was the parent or guardian of a minor who was party to an accident, an insurer or written designee for an insurance business for any party who is subject of the reports, or that Hughes & Coleman was the legal representative of any other party to an accident. Further, the request did not provide HPD any facts or evidence demonstrating that Appellant and her client were legally entitled to assert those exceptions to the KRS 189.635(5) exemption. As such, there is no evidence in the record that HPD was obligated to conduct a search for responsive accident reports under those exceptions to KRS 189.635(5) when it initially received the request for records.
2 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."
3 KRS 61.878(1)(l) excludes: "Public record or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."