24-ORD-080
March 20, 2024
In re: Mt. Sterling Advocate/Mount Sterling Police Department
Summary: The Mount Sterling Police Department (“the Department”)
did not violate the Open Records Act (“the Act”) when it did not require
the use of a standardized request form and when it could not provide a
record that does not yet exist. Requests by news-gathering organizations
for automobile collision reports must be submitted to the Kentucky State
Police (“KSP”) pursuant to 502 KAR 15:010.
Open Records Decision
On February 23, 2024, the Mt. Sterling Advocate (“Appellant”), a newspaper,
submitted a request by email to the Department for a copy of a vehicle accident report
for a collision that had occurred approximately 18 hours earlier. In its initial
response, the Department stated the Appellant would have to go to the Department
in person and fill out a request form. After the Appellant pointed out that
KRS 61.872(2)(b) allows requests to be submitted by email, the Department replied
that it would still be necessary to use the standardized form promulgated by the
Attorney General pursuant to KRS 61.876(4). When the Appellant noted that KRS
61.872(2)(c) provides “[a] public agency shall not require the use of any particular
form for the submission of an open records request,” the Department agreed to accept
the request without a standardized form, so long as the Appellant provided the
information required by KRS 61.876(4). The Department further stated that, “[o]nce
the records are deemed to be appropriate for release, (no open investigation, no
HIPAA information, or sensitive information),” the Appellant could obtain a copy of
the report.1 This appeal followed.
On appeal, the Appellant claims the Department “is insisting” that the request
be submitted on the standardized form. However, that is not the case because the
1
This entire discussion occurred within one business day after the Appellant’s request was
submitted, and accordingly did not delay the Department’s final response beyond the five business
days allowed under KRS 61.880(1).Department clearly agreed to accept the request without the form. A public agency
does not violate the Act when it denies a request due to the requester’s failure to
provide the information required by KRS 61.876(4).2 See 24-ORD-021. Here, however,
the Department did not deny the request due to a lack of information from the
Appellant. Instead, in its final response to the request,3 the Department informed the
Appellant the accident report “is not completed at this time.” Thus, the Department
asserts the record does not yet exist.
Further, the Department is not authorized to provide its copy of the automobile
collision report to the Appellant. Rather, the Department’s copy of the report shall
remain confidential unless requested by one of the parties identified under
KRS 189.635(5)(c). See KRS 189.635(5)(b) (“All other accident reports required by this
section, and the information contained in the reports, shall be confidential and
exempt from public disclosure under [the Act], except when . . . [d]isclosed as provided
in this section”). News-gathering organizations are not listed among the parties to
whom such reports “shall be made available” in KRS 189.635(5)(c). Rather, news-
gathering organizations are only entitled to copies of automobile accident reports by
following the procedure set forth in 502 KAR 15:010. See KRS 189.635(8)(d) (“A
request under [KRS 189.635(8)] shall be completed using a form promulgated by
[KSP] through administrative regulations in accordance with KRS Chapter 13A”
(emphasis added)); see also 23-ORD-087 (finding that KSP is the official custodian of
records for automobile accident reports). The form required under 502 KAR 15:010
and the required fee are required to be submitted to KSP. See 502 KAR 15:010 § 5 (a
news-gathering
organization
requesting
a
traffic
collision
report
under
KRS 189.635(8) “shall complete and sign KSP 029, News-gathering organization
certification and submit the form with the request for records” by email, fax, or mail
to the KSP records custodian). Thus, even if the report had existed at the time of the
Appellant’s request, the Department should have denied the request and directed the
Appellant to follow the procedure set forth in 502 KAR 15:010 and to address its
request to KSP.4
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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
2
Here, the only such information omitted in the Appellant’s request was “[w]hether the request is
for a commercial purpose.” KRS 61.876(4)(c).
3
Because the Appellant did not provide a dated copy of the Department’s emailed response, but
merely quoted the language of it, the Office cannot determine whether the Department’s final
disposition of the request was timely under KRS 61.880(1).
4
Because the Department is not authorized to complete the Appellant’s request, and because it did
not actually impose the fee about which the Appellant complains, it is unnecessary to determine
whether the Department subverted the intent of the Act by imposing an excessive fee.action or in any subsequent proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#145
Distributed to:
Mr. Tom Marshall
Terry Landrum, Chief
Megan Williams, Esq.