Request By:
Mr. Walter L. Cato, Jr.
510 Starks Building
Louisville, KY 40202
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Mr. Jeffrey D. Thompson has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect all automobile accident reports prepared by the Shively Police Department during the four week period prior to the date of inspection.
Mr. Thompson requested the opportunity to inspect said documents by letter dated May 24, 1989. In this letter, Mr. Thompson indicated that he anticipated making future requests on a weekly basis. You denied this request by letter dated June 1, 1989. As reasons for this denial, You attached your response to an identical request. That response, dated March 14, 1989, relied upon the exemption of KRS 61.878(1)(a). This response also based the denial of inspection on KRS 61.872(2) which provides that the official custodian may require written application describing the records to be inspected. Finally, this response based the denial on KRS 61.872(5) which pertains to requests which place an unreasonable burden on the public agency.
Mr. Thompson requested the Attorney General to review this denial by letter dated June 2, 1989. Mr. Thompson referred this office to OAG 83-53 in support of his claim that the records requested are subject to inspection.
OPINION OF THE ATTORNEY GENERAL
This office has repeatedly and consistently held that uniform police traffic accident reports prepared by law enforcement officers pursuant to KRS 189.635 are not confidential and are open records under the open records law. OAG's 83-53, 80-210, 76-478. [Copies enclosed.] This office reaffirms its prior opinions on this subject and holds that the records sought for inspection by Mr. Thompson are not exempt under the provisions cited in your letter of denial and must be made available.
KRS 61.878(1)(a) provides in part as follows:
The following public records are excluded from the application of KRS 61.870 to 61.884 . . . . (a) Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.
Your letter relied in part upon KRS 61.878(1)(a) in denying Mr. Thompson's request. Specifically, your letter states that some of the information included on accident reports, such as driver's license numbers which are identical with social security numbers, and names and addresses of parties and witnesses would constitute an invasion of personal privacy if disclosed. It is true that social security numbers are exempt from public inspection under the provisions of KRS 61.878(1)(a). OAG 84-51. This office does not agree, however, that the names of parties and witnesses are excluded from public inspection. OAG 82-234. However, the fact that some information contained in police accident reports may be exempted from public inspection does not relieve the public agency of providing the other information which is not exempted from public inspection. KRS 61.878(4) provides as follows:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination.
Therefore, a public agency may blot out or expunge information which is excluded from public inspection and make the non-excepted material available for inspection. The task of separating excepted material from non-excepted material on voluminous numbers of police accident reports is admittedly burdensome. However, the decision to do so rests within the sound discretion of the public agency because the exemptions contained within KRS 61.878(1) are permissive, not mandatory. OAG's 84-163, 83-329, 82-275, 80-519, 79-275. Therefore, the Shively Police Department may make available all information contained on uniform police traffic accident reports or may expunge that information which is exempt from inspection, but may not deny inspection of the entire report.
Your letter of denial was also based in part upon KRS 61.872(2) which provides as follows:
Any person shall have the right to inspect public records during the regular office hours of the public agency. The official custodian may require written application describing the records to be inspected.
Your denial letter appears to maintain that the written letter by Mr. Thompson, although sufficient for purposes of satisfying the requirement of a "written application, " does not sufficiently describe the records to be inspected. This office disagrees. Mr. Thompson's letter expressly requests that he be permitted to inspect "all accident reports prepared for a period of four (4) weeks prior to the date of inspection. " The letter attached to your letter of denial indicates that approximately 50 accident reports per week are prepared. Therefore, Mr. Thompson is requesting to inspect approximately 200 accident reports and has identified without any ambiguity which accident reports he wishes to inspect. The public agency may designate the place, time, and date on which the public records will be available for inspection and therefore there should be no doubt about which records Mr. Thompson wishes to inspect. KRS 61.872(4).
The third reason given for denial of Mr. Thompson's request is based upon KRS 61.872(5) which provides as follows:
If the application places an unreasonable burden in producing voluminous public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records. However, refusal under this section must be sustained by clear and convincing evidence.
[Emphasis added.]
This office does not believe that you have provided clear and convincing evidence that Mr. Thompson's request places an unreasonable burden on the Shively Police Department or that Mr. Thompson's request is intended to disrupt essential functions of the department. The Shively Police Department is not required to review voluminous numbers of reports and make selected copies of them for Mr. Thompson. Mr. Thompson may be shown where the reports are filed and review the reports himself. This procedure should not prove to be unreasonably burdensome.
The March 14, 1989, letter attached to your letter of denial indicates that the Shively Police Department has the following policy:
To provide copies of individual police reports to attorneys who advise that they represent one of the parties involved or a witness to the accident and who can identify the report by name of party and date or approximate date. Report copies are also to be provided to individuals who are involved in an accident or witnesses thereto.
This policy reflects a practice of providing public records to certain persons and denying the same records to other persons. This policy is in violation of the open records law. The exemptions of KRS 61.878(1) may be invoked according to the nature of the record, but not according to the person who is requesting the inspection or the stated or suspected purpose of the inspection. OAG 82-233. In the future, the Shively Police Department should refrain from permitting inspection of public records by some individuals and denying inspection of the same public records to other individuals.
It is the opinion of the Attorney General that the records sought for inspection by Mr. Thompson are not exempt under the provisions cited in your letter of denial and must be made available. The Shively Police Department may exercise its prerogative to delete exempted material contained in the police accident reports, provided there is consistent application of this prerogative without regard to the individual requesting inspection. The Shively Police Department may institute proceedings within 30 days for injunctive or declaratory relief in the circuit court of the district where the public records are maintained pursuant to KRS 61.880(5).