Request By:
Diane Smith
Records Custodian
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Gerard R. Gerhard, Assistant Attorney General
By letter of January 9, 1989, Robert B. Padgett has asked that this office review your December 21, 1989 response to his request dated December 19, 1989, [State Police Records Request Log No. 89-574] for certain records possibly held by the State Police.
FINDINGS IN BRIEF
The Kentucky State Police failed to act consistent with Open Records provisions in making a blanket denial of inspection of records contained in a file, and in failing to provide a brief explanation of how exceptions cited in denying inspection, applied to records withheld from inspection.
FACTUAL BACKGROUND
By request dated December 19, 1989, Robert Padgett asked to inspect certain records of the State Police described as:
. . . any and all files relating to the inquiry of the allegations made by Robert B. Padgett which were published in the July 16, 1989, State Journal newspaper. This is to include all reports, photographs, interviews and pertinent information prepared by or supplied to the State Police through the course of the inquiry."
By response dated December 21, 1989, you advised Mr. Padgett, in pertinent part:
The inquiry file consists largely of the documents you provided our officer. KRS 61.878(1)(f)(g)(h) exempts intra-office memoranda, opinions, etc., from inspection. Therefore, your request to review this (sic) records is denied.
The response also indicated, in part, that:
KRS 61.878(1)(j) exempts records made confidential by separate statute. KRS 17.150(2) exempts law enforcement files or cases which have not been closed. The records you seek are part of an open case, and, therefore, are exempt from inspection.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(1) provides, in substance and in part, that a public agency, upon receiving a request to inspect public records, shall determine within three working days whether to comply with the request. The agency is to notify the requester, within that three day period, of its decision.
If an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, authorizing withholding of the record, together with a brief explanation of how the exception applies to the record withheld.
A copy of the written response denying inspection is to be forwarded immediately by the agency to the Attorney General. KRS 61.880(2).
During a telephone conversation with you on the morning of January 31, 1990, you advised, in substance, that the file regarding Mr. Padgett's allegations contained information he had furnished, and the investigating officer's memorandum. There was no closing report in the file, you indicated, as the investigating officer, upon reviewing information furnished by Mr. Padgett, found no basis upon which to open a criminal investigation. You indicated further that the paragraph contained in your response to Mr. Padgett indicating there was an open case, was included in your response by mistake, and that Mr. Padgett had been so advised.
On February 16, 1990, the undersigned visited your office at State Police Headquarters, and reviewed what was understood to be the contents of a file related to Mr. Padgett's allegations.
The contents of the file are described, in summary, as follows:
(1) A copy of what apparently was a "letter to the editor" written by Robert Padgett, that had appeared in the Frankfort State Journal.
(2) Perhaps two-hundred pages of 8 and 1/2 by 11 electrostatic copies, understood to be items furnished by Mr. Padgett to the State Police. These items would, be described, again, in summary, as:
(a) Letters and memos regarding contacts with other agencies. (1981-88);
(b) Memos regarding equipment and training;
(c) Agency internal memos regarding compensatory time, together with copies of travel vouchers of several individuals (1984);
(d) Memos, etc., related to a mine reclamation project in Western Kentucky;
(e) Items related to a reclamation project in Eastern Kentucky.
(3) About 26 approximately 3x5 color photographs of what might be a reclaimed mining area.
(4) About 13 approximately 3x5 color photographs apparently related to what apparently is a reclamation project in western Kentucky.
(5) Apparent investigating officer's memorandum to state police supervisor expressing officer's opinion regarding case.
All items except the memorandum mentioned in item five, and the photographs mentioned in items three and four, are understood to have been furnished by Mr. Padgett to the State Police.
Your response to Mr. Padgett was timely, and to that extent, was consistent with KRS 61.870 to 61.884.
The wording of your denial of inspection was a blanket one, denying inspection of all items in the file.
Your response to Mr. Padgett did not provide a brief explanation of how specific exceptions (to the general rule allowing inspection of public records) , that you cited in denying inspection of the records contained in the file in question, applied to particular records that were withheld from inspection. In this respect your response was not consistent with KRS 61.870 to 61.884.
Aside from procedural considerations regarding your response, is the question of whether specific records in the file are subject to inspection.
The file contained three basic categories of records: (1) The memorandum of the investigating officer to a State Police supervisor expressing the investigating officer's opinions regarding the case. (2) Materials supplied to the State Police by the requester. (3) Photographs.
Inspection of the investigating officer's memorandum, expressing as it does the investigating officer's opinion regarding the matter involved, and in view of its preliminary character, may be properly denied pursuant to KRS 61.878(1)(h). A denial on such basis should be accompanied by a brief explanation of how the specific exception cited applies to the particular record (here a memorandum) withheld from inspection.
Mr. Padgett should be allowed to inspect, should he wish to do so, materials he apparently furnished to the State Police, even though he may already have copies of such material, unless inspection of particular records is denied pursuant to a specific exception from among those set forth in KRS 61.878, and the application of such exception is properly explained in keeping with KRS 61.880(1).
Inspection of the photographs contained in the file should be permitted, unless inspection is denied pursuant to a specific exception from among those set forth in KRS 61.878, and the application of such exception is properly explained in keeping with KRS 61.880(1).
The Kentucky State Police should promptly advise Mr. Padgett that he may inspect records from the file in question in keeping with this opinion. If inspection of particular records from the file is denied, e.g., the officer's preliminary memorandum, such denial should be explained in keeping with KRS 61.880 (i.e., the specific exception relied upon in denying inspection should be cited, and a brief explanation should be given regarding how such exception applies to the record inspection of which is denied).
Both the Kentucky State Police and Mr. Robert B. Padgett may have a right, pursuant to KRS 61.880(5), to appeal the findings of this opinion.
As required by statute, a copy of this opinion is being sent to Robert B. Padgett.