Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Jeffersonville violated the Open Records Act in partially denying Leonard Wilson's December 20, 2005, request for:
1. The documentation of the accident report on the doge truck, city's truck. The place which the aciendent ocured the time of day, and the driver of the truck and the location where the truck is storaged at. [Sic.]
2. The copy of the ordinance 2005-7 amending policies and procedures.
In addition, Mr. Wilson requested that "all employees -- mayor and all four commissioners . . . take a drug test . . . [and that he be provided with] the documentation of the test results."
By letter dated December 21, 2005, Jeffersonville City Clerk/Treasurer Stacey C. Honeycutt provided Mr. Wilson with records responsive to request number 2, but advised him that "[p]er Attorney Leah Hawkins #1 and #3 is [sic] not a request for open records." 1 On the same day Mr. Wilson initiated this appeal, seeking review of the city's denial of requests 1 and 3. 2 For the reasons that follow, we find that although the city properly characterized request 2 as an improperly framed request that it was not obligated to honor, the city erroneously characterized request 1 as an improper request. In the latter request, Mr. Wilson identified a document, specifically an accident report. The requested accident report is, however, a record made confidential by enactment of the General Assembly, specifically KRS 189.635(5). Accordingly, we find that although the rationale for denial advanced by the city was flawed, Mr. Wilson is precluded from access to the requested accident report by operation of an enactment of the General Assembly.
In supplemental correspondence directed to this office following commencement of this appeal, City Attorney Hawkins elaborated on the city's position. She observed:
The City of Jeffersonville is not required to provide responses to interrogatories or questions, only to produce public records defined as documentation which is prepared, owned, used, and in the possession of or retained by a public agency pursuant to KRS 61.870 Subsection 2. The City of Jeffersonville is not required to answer interrogatories or requests for information, or mandate drug testing pursuant to an open records request.
As noted, the city's position relative to request 2 is well-founded, but not so its position relative to request 1.
In a line of decisions dating from the inception of the Open Records Act, the Attorney General has recognized that a public agency is not statutorily obligated to honor a request for information as opposed to a request for specifically described public records. For example, in 93-ORD-51 this office held that the Open Records Act:
93-ORD-51, p. 3. Mirroring this view, in OAG 87-84 we observed:
OAG 87-84, p. 3. These decisions were premised on the language of the statutes themselves, including KRS 61.871 (providing that "free and open examination of public records is in the public interest"), KRS 61.872(1) (providing that "[a]ll public records shall be open for inspection by any person"), and KRS 61.872(2) (providing that "[a]ny person shall have the right to inspect public records" ) (emphasis added).
99-ORD-71, pp. 1, 2; see also 03-ORD-071; 03-ORD-062. As recently as January of 2005, the Attorney General reminded Mr. Wilson that his requests need not be honored if they were not framed as requests for existing public records. See, 05-ORD-006 (enclosed). Clearly, a request that public officials submit to a drug test and thereafter disclose the written results of those tests is a request that is beyond the intended scope and underlying purpose of the Open Records Act. The city is under no obligation to honor this portion of his open records request.
Having so concluded, we nevertheless find that Mr. Wilson's first request was properly framed as a request for "[t]he documentation of the accident report on the doge truck. " Although the request also specified items of information which he wished to glean from the report, the request identified a particular record: an accident report involving a city truck. This request was proper under the Open Records Act. 3 Nevertheless, the requested record is excluded from public inspection by operation of KRS 189.635(5), incorporated into the Act by KRS 61.878(1)(l). The cited statute provides:
All accident reports filed with the Department of State Police in compliance with subsection (4) 4 . . . shall remain confidential except that the department may disclose the identity of a person involved in an accident when his identity is not otherwise known or when he denies his presence at an accident. Except as provided in subsection (7) of this section, all other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (6) 5 of this section. These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is party to the accident, and the insurers of any party who is the subject of the report, or to the attorneys of the parties.
In construing this provision, the Attorney General has observed:
KRS 189.635(5), in tandem with KRS 61.878(1)(l), requires that a public agency deny a request for copies of accident reports not submitted by parties to the accident, the parents or guardians of a minor who is party to the accident, the insurers of any party who is the subject of the report, the attorneys of the parties, and news gathering organizations "solely for the purpose of publishing or broadcasting the news." KRS 189.635(6). This specific confidentiality provision overrides the general rule of openness mandated by the Open Records Act.
Moreover, KRS 189.635(2) requires that a law enforcement officer having jurisdiction over a vehicle accident shall investigate the accident and file a written report of the accident with his law enforcement agency. KRS 189.635(3) requires that the law enforcement agency file a report of the accident with the Department of State Police within ten (10) days after the occurrence of the accident upon forms provided by the department. As noted above, KRS 189.635(5) requires that "all other accident reports required by this section, and the information contained in the reports, shall remain confidential and exempt from public disclosure except to a properly executed subpoena or court order, or except pursuant to subsection 6 of this section."
02-ORD-155, p. 4; see also, 03-ORD-188; 01-ORD-127; compare 02-ORD-19.
This confidentiality provision admits of only the specifically enumerated exceptions found in its concluding sentence and in KRS 189.635(6). It does not permit disclosure of the accident report if the vehicle involved in the accident is a city vehicle being driven by a city employee. Nor does it permit disclosure based on the requester's goals and intended use. The city's omission, consisting of its failure to cite KRS 189.635(5), was largely attributable to its belief that Mr. Wilson's request was improperly framed. That error "cannot be remedied by committing another [through compulsory disclosure of a confidential record] and thus compounding [the] mistake[] . . . ."
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 859 (1996). Pursuant to KRS 189.635(5), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), we find that Mr. Wilson is not entitled to a copy of the accident report he requested on December 20, 2005.
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.
Footnotes
Footnotes
1 Although Mr. Wilson did not raise the issue on appeal, we note that the city imposed a fifteen cents per page reproduction charge. Unless the city can substantiate actual reproduction costs of fifteen cents per page, including medium and mechanical processing costs but excluding staff costs per KRS 61.874(3), it must recalculate its reproduction charge to conform to the ten cents per page charge established by the Kentucky Supreme Court in Ex parte Farley, Ky., 570 S.W.2d 617 (1978).
2 Mr. Wilson indicated that he had included a copy of "the Attorney's response denying [his] request," but we were unable to locate a response from Ms. Hawkins in the attached materials. We did, however, locate additional documentation in the form of separate open records requests, the city's responses thereto, records provided with the city's responses, photographs, and newspaper articles. In an accompanying letter, Mr. Wilson suggested that we "pass [these materials] on to the Division of Water" and requested that "all violations past and present be published in the Herald-Leader paper . . . ." We remind Mr. Wilson that the Attorney General's role in adjudicating an open records dispute is narrowly circumscribed. In that role, the Attorney General is not empowered to pass along unrelated complaints to separate agencies or promote media coverage of any kind. We are limited in our review to a determination whether the city violated provisions of the Open Records Act in the disposition of Mr. Wilson's request.
3 The city does not argue that a copy of the requested report is not in its possession and therefore cannot postulate its denial on this basis.
4 KRS 189.635(4) provides as follows:
Any person operating a vehicle on the highways of this state who is involved in an accident resulting in any property damage exceeding five hundred dollars ($ 500) in which an investigation is not conducted by a law enforcement officer shall file a written report of the accident with the Department of State Police within ten (10) days of occurrence of the accident upon forms provided by the department.
5 KRS 189.635(6) provides as follows:
The report shall be made available to a news-gathering organization, solely for the purpose of publishing or broadcasting the news. The news-gathering organization shall not use or distribute the report, or knowingly allow its use or distribution, for a commercial purpose other than the news-gathering organization's publication or broadcasting of the information in the report. A newspaper, periodical, or radio or television station shall not be held to have used or knowingly allowed the use of the report for a commercial purpose merely because of its publication or broadcast.