23-ORD-087
April 17, 2023
In re: Western States Media/Louisville Metro Government
Summary: Louisville Metro Government (“Metro”) did not violate the
Open Records Act (“the Act”) when it denied a request for automobile
collision reports under KRS 189.635(5)(b).
Open Records Decision
In January 2023, Western States Media (“Appellant”) submitted multiple
requests to Metro to obtain copies of “all Kentucky Uniform Police Traffic Collision
Reports generated by law enforcement officers of the Louisville Metropolitan Police
Department” (“LMPD”) during various dates in January. On January 25, 2023, Metro
denied all of the Appellant’s requests in one collective response.1 In support of its
denial, Metro cited several provisions of KRS 189.635, including applicable and
inapplicable provisions. Then, shortly after issuing its response, Metro issued a
second response “closing” the request because “it appear[ed]” the Appellant was not
a “resident of the Commonwealth” as defined under KRS 61.870(10). The Appellant
then initiated its first appeal of Metro’s denial.
While the Appellant’s first appeal was pending, it submitted to Metro
additional requests for collision reports on various dates. Again, Metro denied the
Appellant’s request, this time stating only that traffic collision “information is
maintained by” the Department of Kentucky State Police (“KSP”). Metro also
provided a URL link to a website maintained by KSP. The KSP website, however,
1
The Appellant submitted his first request on January 13, 2023, but Metro’s first collective response
was issued on January 25, 2023, more than five business days later. See KRS 61.880(1) (requiring an
agency to respond to a request under the Act within five business days of receipt). However, it is not
clear when Metro received the Appellant’s requests, and the Appellant does not challenge the
timeliness of Metro’s response.does not contain information on how to request collision reports or the contact
information for its official custodian of records. Nevertheless, the Appellant had
already obtained contact information for KSP’s records custodian, because it also
submitted requests to KSP seeking “all Kentucky Uniform Police Traffic Collision
Reports generated by law enforcement officers of LMPD” in which the collisions
occurred on an identified date. KSP denied the request, stating, in essence, that it
was not the official records custodian of such reports. KSP directed the Appellant
back to Metro, thus causing the Appellant to initiate its second appeal. The Office has
consolidated both appeals because they involve the same issue and parties.2 See e.g.,
23-ORD-003; 23-ORD-034.
The Appellant’s first appeal primarily focuses on Metro’s second response to
the first request, in which Metro denied the request because it did not believe the
Appellant qualified as a resident of the Commonwealth. However, on appeal, Metro
claims its first response to the first request appropriately denied inspection under
KRS 189.635. Metro now admits the Appellant satisfies the residency requirement
because it is a “news-gathering organization” as defined under KRS 61.870(10)(g).3
Because Metro’s first response appropriately denied the first request, it is
unnecessary to examine Metro’s later denial of the request on grounds of residency.
Although KRS 61.870(2) generally defines “public records” subject to
inspection under the Act, KRS 189.635 applies to a specific type of record—
automobile collision reports. Whenever an automobile collision “result[s] in fatal or
nonfatal personal injury to any person or damage to the vehicle rendering the vehicle
inoperable,” a person operating the vehicle is required to notify law enforcement.
KRS 189.635(2). “A law enforcement officer having jurisdiction shall investigate the
accident and file a written report of the accident with his or her law enforcement
agency.” Id. Under KRS 189.635(3), “[e]very law enforcement agency whose officers
investigate a vehicle accident of which a report must be made as required in this
chapter shall file a report of the accident with” KSP. If, however, an accident results
in more than $500 in property damage and a law enforcement officer does not
2
The parties to both appeals are Western States Media and Louisville Metro Government. Although
the Appellant attempted to add KSP as a party to its second appeal, it failed to include a copy of the
request it submitted to KSP. The Appellant provided only a copy of KSP’s response, which quoted the
Appellant’s request for collision reports. While no party disputes the accuracy of KSP’s quotation of
the Appellant’s request, a person seeking this Office’s review of an agency’s denial of a request to
inspect records must strictly comply with KRS 61.880(2)(a). See, e.g., 22-ORD-165. Accordingly, the
Office lacks jurisdiction to consider whether KSP’s response complied with the Act. Regardless, KSP
states on appeal it has now provided copies of the requested records to the Appellant. Thus, even if the
Appellant had complied with KRS 61.880(2)(a) in adding KSP as an agency-defendant, the appeal
would be moot as to KSP. See 40 KAR 1:030 § 6. However, because Metro continues to deny that it is
the official records custodian of the collision reports, the appeal is not moot as to it.
3
Further entwining the statutes applicable to this appeal, KRS 61.870(10)(g) incorporates by
reference the definition of “news-gathering organization” as defined in KRS 189.635(b)1.a.–e.investigate the incident, the “person operating the vehicle” is required to file such a
report with KSP. KRS 189.635(4). Thus, there are two types of collision reports.
The first type includes reports submitted to KSP by law enforcement agencies
after receiving them from the investigating officer. KRS 189.635(3). For these records,
LMPD would possess a copy, but the official collision report is filed with KSP, making
KSP the official custodian of the official collision report. The second type of report
involves less significant collisions, because they do not involve “fatal or nonfatal
personal injury” and do not cause a vehicle to be inoperable, but nevertheless cause
more than $500 in property damage. Those collisions do not require a law
enforcement officer to investigate, but a person operating a vehicle involved in such
a collision has a statutory obligation to file his or her own report with KSP.
KRS 189.635(4). Presumably, LMPD would not possess any copies of these reports
because they are to be filed directly by the vehicle operator with the KSP. Again, KSP
is the official custodian of this second type of collision report.
The distinction between the two types of collision reports is important. As
noted above, LMPD would presumably not possess a copy of the second type of
collision report, because those are filed by vehicle operators directly with KSP under
KRS 189.635(4). “All accident reports filed with the Department of Kentucky State
Police in compliance with subsection (4) of this section shall not be considered open
records
under
KRS
61.870
to
61.884
and
shall
remain
confidential.”
KRS 189.635(5)(a) (emphasis added).4 Metro relies, in part, on KRS 189.635(5)(a) to
deny inspection of the requested collision reports. But KRS 189.635(5)(a) does not
apply to Metro’s records, because it covers only those reports involving less serious
collisions that LMPD would not have investigated.
Rather, KRS 189.635(5)(b), which Metro also cited in its first response, applies
to Metro’s copies of the collision reports. That provision states, “All other accident
reports required by this section, and the information contained in the reports, shall
be confidential and exempt from public disclosure under KRS 61.870 to 61.884” except
when disclosed “as provided in this section,” i.e., KRS 189.635. KRS 189.635(5)(b)
(emphasis added). Thus, Metro shall deny inspection of the reports under
KRS 189.635(5)(b), except when another provision of KRS 189.635 permits disclosure.
Two subsections of KRS 189.635 operate to permit inspection of collision
reports by “news-gathering organizations,” but neither give Metro the authority to
grant inspection. The first is KRS 189.635(7), which requires KSP to promulgate
4
Nevertheless, KRS 189.635(5)(a) further states that KSP “may” make the reports available under
KRS 189.635(8), which is the subsection governing news-gathering organizations’ access to collision
reports. This is further evidence that KSP is the official custodian of the collision reports, because it is
the agency with discretion to decide whether to provide reports filed under KRS 189.635(4) to the
press.administrative regulations that “set out a fee schedule for accident reports made
available pursuant to subsections (5) and (8) of this section.” And KRS 189.635(8) is
the subsection providing the procedures for a news-gathering organization’s access.
Specifically, when a news-gathering organization seeks collision reports, it must
submit the request to KSP, the proper custodian of the records. That is because news-
gathering organizations may only have access to the collision reports when
submitting a “request under this subsection” (i.e., KRS 189.635(8)), and its request
“shall be completed using a form promulgated by” KSP. KRS 189.635(8)(d) (emphasis
added).
In sum, KRS 189.635(5)(b) prevents Metro from disclosing LMPD’s copies of
collision reports because “the information contained in the reports” has been
submitted to KSP in an official report under KRS 189.635(3). But KSP can
nevertheless make that information available to a news-gathering organization if the
organization complies with KRS 189.635(8)(d). The Appellant did not comply with
KRS 189.635(8)(d) because it did not send its first request to KSP or fill out the
appropriate form and pay the appropriate fees. See 502 KAR 15:010 § 5; see also 18-
ORD-024 (finding a local law enforcement agency did not violate the Act when a
purported news-gathering organization failed to complete the required KSP form).
Accordingly, Metro did not violate the Act when it denied the Appellant’s requests
under KRS 189.635(5)(b).
A party aggrieved by this decision may appeal it by initiating action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Marc Manley
Marc Manley
Assistant Attorney General
#054
#106
Distributed to:Jeremy Rogers
Alice Lyon
Michelle Harrison