Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Daviess County Attorney properly relied on KRS 61.878(1)(h) in denying Raymond Baird's September 7, 2002, request for a copy of "the affidavit that [his neighbor] fill[ed] out and signed concerning" an accident involving an offensive gesture Mr. Baird allegedly made. For the reasons that follow, we affirm the County Attorney's denial of Mr. Baird's request.
In his letter of appeal, Mr. Baird questions the constitutionality of KRS 61.878(1)(h) asserting that the statute "abridges [his] right to . . . information" under Section 8 of the Constitution of Kentucky and the First Amendment of the Constitution of the United States. In support of his position that he is legally entitled to receive the affidavit, he notes that Mr. Kirtley provided him with copies of similar records on two previous occasions, and encloses two letters, the first from 1997 and the second from 1999, documenting disclosure. Inasmuch as KRS 61.878(1)(h) appears to constitute a mandatory prohibition on disclosure, and Mr. Kirtley released records in 1997 and 1999, "without an order of the court," Mr. Baird asserts that he is "not applying the same standard concerning Kentucky Open Records requests," and may be guilty of official misconduct, the elements of which are codified at KRS 522.030. Finally, Mr. Baird questions whether the County Attorney actually conducted an investigation into the allegations against Mr. Baird based on Mr. Kirtley's statement in a June 16, 2000, letter that his office "is not in a position to ascertain exactly what has or has not happened in this matter and do [sic] not assert the accuracy of the information furnished us . . . ." In closing, Mr. Baird expressed concern that the Attorney General's review of this matter would be a cursory "rubber stamp. "
In supplemental correspondence directed to this office following commencement of Mr. Baird's appeal, Mr. Kirtley reaffirms his office's denial of access to the disputed record on the basis of KRS 61.878(1)(h), arguing that "[t]he fact that we may have released information in the past does not mean that this office has waived its right to protect its records now." In addition, he observes:
Also, Mr. Baird apparently is challenging the constitutionality of this statute. Pursuant to KRS 418.075, you apparently need to be put on notice, not in your capacity as an appellate review of open records law, but in your capacity as Attorney General regarding the challenge to the constitutionality of a statute.
Because Mr. Baird characterized his September 17, 2002, letter to this office as a "Kentucky Open Records appeal," indicating in the first sentence of the letter that he is "appealing under KRS 61.880(2)(a) a decision made by Mr. Robert M. Kirtley denying [him] a copy of a . . . signed affidavit by [his neighbor] ," and because our jurisdiction under the cited provision is restricted to issuing a decision stating whether the Daviess County Attorney violated the Open Records Act, we restrict our review to the latter issue.
With regard to our jurisdiction under KRS 61.880(2), we begin by noting that if Mr. Baird is concerned about a "rubber stamp" review, he, like any other citizen, may proceed directly to circuit court for review of this open records dispute. KRS 61.882(2) thus provides:
A person alleging a violation of the provisions of KRS 61.870 to 61.884 shall not have to exhaust his remedies under KRS 61.880 before filing suit in a Circuit Court.
Additionally, he will not be prejudiced in a subsequent appeal of our decision to the circuit court insofar as KRS 61.882(3) provides for de novo judicial review.
Turning to the substantive issue in this appeal, we affirm Mr. Kirtley's denial of Mr. Baird's request on the basis of KRS 61.878(1)(h). That statute authorizes nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violation 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 or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
(Emphasis added.) In 93-ORD-137, this office examined KRS 61.878(1)(h). At page 2 of that decision, we observed:
In enacting this provision, the General Assembly clearly intended to affirm permanent protection to the records of the County and Commonwealth's Attorney which relate to criminal investigations or criminal litigation. In other words, these records are forever exempt from public inspection under the Open Records Law.
Thus, "[n]o matter what the stage or status of the proceedings, the County and Commonwealth's Attorney may invoke the exception set forth in KRS 61.878(1)(h) relative to such activities and endeavors and withhold those materials from public inspection. " 96-ORD-77, p. 2; 00-ORD-116. See also
Skaggs v. Redford, Ky., 844 S.W.2d 389 (1993). We do not accept the proposition advanced by Mr. Baird that because no full-blown criminal investigation or prosecution was commenced, the disputed record does not qualify for exclusion under the cited exception. Instead, we believe that the record falls squarely within the parameters of that exception as an initiating complaint which, after reviewing, Mr. Kirtley determined did not warrant additional action. We affirm Mr. Kirtley's denial of Mr. Baird's request.
Finally, we are obliged to respond to Mr. Baird's argument that the exceptions to the Open Records Act are mandatory, and that Mr. Kirtley may have engaged in official misconduct in releasing similar documents on earlier occasions. Mr. Baird focuses on the language of KRS 61.878(1), which provides:
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 . . . .
In an early open records opinion, the Attorney General observed:
In 73 Am.Jur.2d Statutes §§ 19-27 there is a discussion of mandatory and directory statutes. This treatise states that a statute which uses the word "shall" or "must" is usually considered to be mandatory in its effect while the word "may" is usually understood to be permissive or directory, but this rule is not absolute.
There are cases in which words of a statute, which are generally regarded as mandatory, are nevertheless given a directory or permissive meaning, in order to give effect to the legislative intent. Thus, a legislative intention that the word 'shall' is to be construed as permissive may appear from the spirit or purpose of the act, or from the connection in which it is used or the relation into which it is put with other parts of the same statute." 73 Am.Jur.2d Statutes § 25.
We believe that when KRS 61.878(1) says "the following public records are excluded . . . and shall be subject to inspection only upon order of a court . . .", that the legislative intent was permissive and not mandatory. The exemptions are convenient shields which public officials may use when they desire to do so, not restraints to keep them from opening up any records in their custody. An official does not have to be concerned with whether a record should be released or not, but only concerned with whether he may justifiably withhold a record from public examination.
OAG 79-275, p. 3. Because the exceptions "are a shield and not a shackle," id., Mr. Kirtley exercised his discretion to release similar documents on earlier occasions, but was by no means estopped from exercising his discretion to withhold the disputed record in the instant appeal.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.
Raymond Baird3830 Shelby DriveOwensboro, KY 42303
Robert M. KirtleyDaviess County AttorneyP.O. Box 158100 East Second StreetJudicial Center - Room 304Owensboro, KY 42302