Request By:
Sergeant Paul Sologic
Staff Services Section
Ashland Police Department
Ashland, Kentucky 41101
Opinion
Opinion By: Frederic J. Cowan, Attorney General
On September 2, 1988, the Office of the Attorney General, acting pursuant to KRS 61.880, issued OAG 88-58 upholding a denial of a request made under the Kentucky Open Records Act, KRS 61.870 et seq. (the "Act"). That request, made by a member of the media to the Ashland Police Department, entailed a "standing request to review . . . uniform citations on a daily basis. " This opinion supplements and expands OAG 88-58.
In dealing with issues relating to law enforcement agencies' records, competing public policy interests are at stake. On the one hand, it is the clear policy of the Commonwealth, as expressed in the Open Records Act, that "access to information concerning the conduct of the people's business is a fundamental and necessary right of every citizen in the Commonwealth of Kentucky." 1976 Ky. Acts, Ch. 273. On the other hand, the General Assembly also clearly has set as public policy and legislative enactment that certain information pertaining to the necessity to detect and prosecute citizens who violate the laws of the Commonwealth is exempt from disclosure on a limited basis. The exemptions are granted statutorily for the purpose of allowing a criminal prosecution to proceed without jeopardy.
In addition to these considerations, there is a specific public policy that must be kept in mind and that is the citizens' desire that our laws be fairly administered and enforced without regard to political favoritism, social standing or special influence.
In this regard, the improper disposition of uniform citations, whether real or imagined, led to the passage of House Bill 21 in the 1976 Extraordinary Session of the General Assembly. The provisions of this bill, which were codified in part in KRS 431.450 and 431.455, were designed to set up a system of accountability to the public of uniform citations. It is quite clearly the intention of those statutes that all citations are to be dealt with uniformly and that they are not to be "wrongfully destroyed, tampered with, or otherwise compromised in any manner." KRS 431.450(3). In fact, any peace officer violating the statute is subject to serious penalties. KRS 431.455(4).
In formulating an opinion, the task of the Attorney General, through faithful adherence to the letter and intent of the statutes, is to balance the sometimes conflicting policy interests in his or her role as the initial "judge" on an Open Records Request. KRS 61.880. It is worth noting that given the limited role for the Attorney General contemplated by the statutes and the office's limited resources, the Attorney General cannot truly be a "judge" in the sense of reviewing volumes of documents, listening to testimony, considering briefs, etc. In the final analysis, the application and meaning of the Open Records Act can only be determined by a court of law.
At the outset, it should be recognized that even if all uniform citations were "open records" without limitations, the public would not be assured a system of accountability for citations. The potential for abuse and alleged "fixing" of traffic tickets and other violations would still exist at the police station. This is so because in the absence of other statutory provisions, police officers or their superiors could simply tear up or throw away citations before any record was ever made of the citation. KRS 431.450 and KRS 431.455 are designed to ensure that no improper disposition of citations occurs.
SYSTEM OF ACCOUNTABILITY FOR UNIFORM CITATIONS
The statutory scheme of accountability is set out in detail in KRS 431.450:
(1) The department of state police in consultation with the transportation cabinet shall design, print, and distribute to all law enforcement agencies in the Commonwealth a uniform citation.
(2) The citation shall:
(a) Be approved by the Supreme Court;
(b) Consist of an original document and five (5) copies;
(c) Be serially numbered in such a manner that the year of issue and the individual citation number may be readily ascertained; and
(d) Contain such other information as may be required by the Supreme Court.
(3) The circuit court clerk shall maintain a system of accountability for all citations issued in accordance with rules and regulations issued by the Supreme Court to assure that citations are not wrongfully destroyed, tampered with, or otherwise compromised in any manner.
(4) All peace officers in the Commonwealth shall use the uniform citation for all violations of the traffic laws and for all felonies, misdemeanors and violations.
When KRS 431.450 was originally enacted, it applied only to traffic violations. 1976 Ky. Acts (Ex. Sess.), Ch. 36, § 3. It was later amended to include other violations and misdemeanors, 1978 Ky. Acts, Ch. 26, § 2, and, ultimately, all felonies, misdemeanors and violations. 1986 Ky. Acts, Ch. 389, § 28. Thus, it is no longer merely traffic offenses that are recorded on the uniform citation form, but crimes of the most serious nature as well.
In assuring the system of accountability envisioned by the statutes, the circuit clerk's responsibility is paramount. The Kentucky Circuit Clerks Manual sets out in detail the system adopted by the Kentucky Supreme Court to ensure the integrity of the process. Kentucky Circuit Clerks Manual, Chapter 1005, the SYstem of Accountability states:
Traffic violations are cited on the uniform citation form. Under the statute, KRS 431.450, the circuit clerk is required to "maintain a system of accountability for all citations issued . . . to assure that citations are not wrongfully destroyed, tampered with, or otherwise compromised in any manner." This section describes this statutory duty.
1. Each day each law enforcement agency serving your county will send you a transmittal list of all citations issued or voided by its officers. This list will be your record of citations filed in your office. KRS 431.455(2) makes it mandatory for all peace officers to properly account for all citations issued to them pursuant to KRS 431.450 and the regulations thereunder. The Circuit Clerks Manual is equivalent to rules and regulations of the Supreme Court. Therefore, failure of a peace officer to comply with the provision on accountability in the Circuit Clerks Manual could result in his being charged with a Class B misdemeanor (see KRS 431.455(4)).
2. The law enforcement agency will file with you all citations issued or voided.
3. Check the citations against the transmittal list; indicate on the list whether each citation is a prepayable or a court appearance. If there are any discrepancies, report them to the law enforcement agency involved. If you have reason to believe that citations are not reported accurately, report the problem to the Administrative Office of the Courts.
4. The transmittal list from the law enforcement agency should show the citation number and the defendant's name. File transmittal list in a master file.
Although the system of accountability set out above appears in the Traffic Section of the Manual, it is applicable to all uniform citations, absent a rule or regulation to the contrary.
There can be little doubt that the Circuit Clerks Manual is applicable to the duties imposed on law enforcement agencies. KRS 431.455 states:
Prohibitions -- Penalty.
(1) No peace officer or other person shall invalidate, or attempt to invalidate, destroy or attempt to destroy a record copy of a uniform citation which has been lawfully issued.
(2) No peace officer or other person to whom uniform citations are distributed, prior to issuance to a violator, shall fail to properly account for uniform citations issued to him or to his agency as required by KRS 431.450 and the regulations issued thereunder.
(3) No person required to file reports pursuant to KRS 431.450 and the regulations issued thereunder shall fail to file the reports within the time limits specified.
(4) Any peace officer or other person who violates the provision of this section shall be guilty of a Class B misdemeanor.
The Manual has the force and effect of a rule or regulation of the Kentucky Supreme Court. Kentucky Circuit Clerks Manual Chapter 1005(2).
The Kentucky State Police has fulfilled its obligation under the statute in that a uniform citation has been developed and distributed as required under KRS 431.450. However, under the present system, the circuit clerks of the Commonwealth are not advised of the serial numbers of citations received by law enforcement agencies in their counties. The Kentucky State Police or the Kentucky Supreme Court should move immediately to remedy this oversight. Once advised of the serial numbers, the circuit clerks can then enforce the accountability system imposed upon them by KRS 431.455 and Kentucky Circuit Clerks Manual Chapter 1005.
The transmittal list provided for under Chapter 1005 should be prepared by each local law enforcement agency in the county, and then delivered to the circuit clerk daily. An agency or office who fails in this regard is in violation of KRS 431.455 and subject to potential criminal penalties. Such a failure could also lead to a civil action to compel the agencies' compliance.
The transmittal list should contain the defendant's name, the offense with which he is charged, and the citation number. It should also contain a list, with citation numbers, of any citations that are voided.
PROCEDURE TO OBTAIN INFORMATION
The transmittal list is subject to review on a daily basis under the Open Records Act. Such a review could generate a request to inspect and copy specific citations. The citations are in fact "public records" and subject to the Act. Likewise, however, they are also subject to exceptions and limitations, where relevant, as provided in the Act, and in KRS 17.150.
It is for this reason, among others, that the "standing request to review [all] citations on a daily basis" could be properly denied. KRS 61.872(5) indicates that inspection may be denied:
"If the application places an unreasonable burden in producing voluminous public records . . ."
The Office of the Attorney General must be mindful of the impact of its decisions. There are a number of large law enforcement agencies in the Commonwealth, including the Kentucky State Police, who would be faced with intolerable administrative burdens were they required to produce all their uniform citations on a daily basis for members of the news media. The Kentucky State Police process in excess of 200,000 uniform citations a year. To comply with a standing request to inspect and copy all uniform citations on a daily basis would be virtually impossible.
The burden is compounded by the fact that while some of the information routinely entered on the uniform citations is clearly not privileged or protected, other information items clearly are. For example, information about witnesses to a felony, about informants, about the peace officers' comments or suggestions concerning the prosecution of the case, about the identity of juveniles, and other items, may and should under certain circumstances be properly withheld. See, e.g., OAG 83-338 (the back side of the uniform report containing supplementary notes of a peace officer is exempt from public inspection) and KRS 610.320(3) (law enforcement records regarding children not open to the public). As such, the local law enforcement agency would have to excise all such information on a citation-by-citation basis that would place a great burden on its ability to carry out its normal law enforcement functions. On the other hand, specific requests for certain citations or certain groups of citations would probably not place an unreasonable burden on the agency. Thus if a request were made to inspect "all citations involving DUI offenses" or all citations relating to a specific person, it is hard to see a basis for outright denial.
There are, however, even under the procedure outlined in this opinion, those occasions where a request for review of specific uniform citation(s) will be denied or delayed. KRS 61.878 points out:
(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction.
(f) Records of law enforcement agencies . . . that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. . . . (Emphasis added.)
Thus, public records may be withheld from disclosure if their "premature release" would harm the law enforcement agency in carrying out its legitimate functions. Accordingly, the information on the uniform citation could be withheld if the law enforcement agency meets its burden of proof, but only if it meets its burden, that release of the information would be harmful. KRS 61.880(2).
KRS 61.678(1)(f) goes on to make it clear that such records are to be opened after enforcement action is completed or a decision is made to take no action. There is a strict admonition that the custodian of such records cannot use the exemption to impede or delay the exercise of rights granted under the Open Records Act.
EXEMPTIONS UNDER KRS 17.150
KRS 17.150 also addresses "Reports by law enforcement officers and criminal justice agencies." In pertinent part it states:
(2) Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection providing prosecution is completed or a determination not to prosecute has been made. However, portions of such records may be withheld from inspection if such inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in such records to be used in a prospective law enforcement action.
(3) When a demand for the inspection of such records is refused by the custodian of the record, the burden shall be upon the custodian to justify the refusal of inspection with specificity. Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section.
Under the terms of this statute, it is clear that the legislature intended that "intelligence and investigative reports" are not subject to an open records request during the pendency of a criminal investigation or prosecution. This interpretation is consistent with a reading of KRS 61.878(1)(f) in the Open Records Act. Disclosure of the information in intelligence and investigative reports can also be withheld if any of the statutory exemptions are met.
The question arises whether uniform citations can be said to be "intelligence and investigative reports" and thus fall within the parameters of KRS 17.150. In the large majority of cases, uniform citations do not include such information. But in a substantial minority of cases, particularly in cases of serious misdemeanors or felonies, intelligence or investigative information may well be included. It is not sufficient to say that the defendant has a copy of everything on the uniform citation since the defendant has only one copy out of six. Sometimes copies in the possession of law enforcement agencies contain notes or information that the defendant, at least initially, does not possess.
Nevertheless, a law enforcement agency should rely on the exceptions listed in KRS 17.150 only rarely. When it does, "the burden shall be upon the custodian to justify the refusal of inspection with specificity," KRS 17.150(3), and a strong and specific showing of how the uniform citation in question fits the prohibitions of the statute must be made before this office could or should uphold such a denial.
SUMMARY
As we pointed out in OAG 79-558 (copy attached), "all citation forms are numbered consecutively and must be accounted for. Once an officer starts filling out a citation, he has committed himself to prosecuting the charge." All uniform citations should be accounted for pursuant to KRS 431.550, and the Supreme Court and Kentucky State Police are urged to ensure compliance with this statute.
It is further the opinion of the Attorney General that "blanket" requests to law enforcement agencies on a "standing" basis are with few exceptions an abuse of the Open Records Act. The transmittal list called for under KRS 431.450 and under the rules of the Kentucky Supreme Court is a public record subject to review under the Open Records Act, even on a continuing basis, since under no circumstances imaginable could it fall within the restrictions of KRS 61.878(5).
Requests to review specific uniform citations, or groups of citations, generated from a review of the transmittal list, or independently, must be treated individually and denial of such a request will be upheld by this office only upon a clear showing that such uniform citations or selected information therein fall within the purview of KRS 61.878(1)(f) or other statutory exception. Law enforcement agencies are reminded that pursuant to KRS 61.878(4), they have a duty to separate excepted material from non-excepted material and make the non-excepted material available for examination. Further, in such cases where the local law enforcement agency has denied access to the uniform citation, the denial should state the time when the citation will be available, if that time can be reasonably anticipated.
Finally, the use of KRS 17.150(2) by a law enforcement agency in denying public access to a uniform citation is a practice to be avoided. A denial based upon this statute will be upheld by this office only upon a clear and specific showing of the necessity of such action as required by KRS 17.150(3).
This Opinion in no way prohibits a law enforcement agency that provides totally free and open access to its uniform citations from continuing that practice, except where it has a specific statutory duty not to disclose information, as in the case of juveniles.