Request By:
Hon. Roger W. Perry
Marshall County Attorney
Marshall County Courthouse
Benton, Kentucky 42025
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
You have requested an opinion of the Attorney General as to whether a list of persons who have been reported to you as county attorney for having cashed cold checks may be released to merchants in your county under the Kentucky Open Records Law, KRS 61.870-61.884. In your letter to this office you state as follows:
As you may remember from the Spring Prosecutor's Conference that I put on for your office, I have started a 'cold check' program. As a part of that, merchants bring to me any cold checks that they have received after they have notified the defendant, and the defendants have failed to make payment within ten days. I then issue another letter of notice on my official letterhead advising them of the possible criminal penalties. I grant them an additional ten days to pay. If payment is made during this ten day period after I send my letter, no charges are taken. In the event that the check passer fails to make the check good within this period of time, then criminal charges are issued.
"As it turns out, a great many of people make payment during this ten day period that I extend to them, so no criminal charges are taken. However, many of these people who make payment during this period of time are persons who have also written checks to other merchants, and who are bad risks to take a check from.
"Merchants have contacted me wanting me to send to them a weekly list of all persons against whom we have taken criminal charges for cold checks. It would seem to me that these charges are a matter of public record, and so there is no difficulty in my simply summarizing the names of those persons against whom criminal complaints have been taken, and providing this to the merchants. However, the merchants also wish for me to advise them of the names of persons who have written checks that have been brought in for me to write the notice letter on.
"The second group would be beneficial to merchants for two reasons. First, they, would know much more quickly if in fact' these persons are presently writing bad checks. Second, there are a great number of persons who write bad checks against whom no criminal charges are ultimately prosecuted.
"Under the Open Records Law, these checks that are brought to my office and the letters that I write, are public records, as nearly as I can determine. For that reason, is there any difficulty in my providing a list to interested merchants who have written checks that have been presented to me to give notice upon."
There are at least two exceptions to the mandatory disclosure requirement of the Open Records Law on which you may refuse public disclosure of your letters to passers of cold checks. One is KRS 61.878(1)(g) which excepts "correspondence with private individuals." Another is KRS 61.878(1)(a) which exempts "public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." However, the exceptions in the Open Records Law are permissive rather than mandatory, and the custodian of public records may allow inspection of any records with impunity as far as the Open Records Law is concerned unless the records are made confidential by state or federal law. We know of no state or federal statute which prohibits you from allowing public inspection of your letters notifying passers of cold checks that they will be prosecuted if the checks are not made good within 10 days nor any law which would prohibit you from compiling a list to distribute to the merchants or other members of the public.
We have some reservations about giving merchants the names of persons who have been sent your cold check warning letter but have not been convicted. We are sounding a note of caution about the possibility of a tort claim for defamation under certain circumstances.
In summary, we believe the Open Records Law allows you the discretion to keep your cold check warning letters confidential or to make them public.