Request By:
Ms. Helen Henson
1939 Augustine Avenue
Covington, KY 41014Captain Patrick Swift
Covington Police Department
1 Police Memorial Drive
Covington, KY 41014Mr. Frank E. Warnock
City Solicitor
638 Madison Avenue
Covington, KY 41011
Opinion
Opinion By: GREGORY D. STUMBO, ATTORNEY GENERAL; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Covington Police Department did not violate the Open Records Act in the disposition of Helen Henson's December 28, 2005, open records request for "complete and full photocopies" of "'all' written police offense/incident reports on file" pertaining to identified residences on particular dates. 1 The Department partially honored Ms. Henson's request by providing her with copies of responsive records captioned "Covington Police Offense Report" after redacting certain personal information relating to the individual reporting the crime, such as date of birth and Social Security Number, pursuant to KRS 61.878(1)(a). The Department explained that it could not honor three of her requests because no responsive records could be located. The Open Records Act does not require more.
Ms. Henson's appeal was prompted by her belief that the Department improperly withheld the second page of the requested offense reports. In support, she attached a copy of the December 3, 2005, offense reports she received in response to her December 28 request, and a copy of an April 3, 2005, offense report obtained by Chris Henson in response to an earlier open records request. As noted, the latter offense report was generated on April 3 and is similar, but not identical to, the December 3 offense reports released to Ms. Henson. In the intervening period, the Covington Police Department apparently modified its offense report form, creating a separate "Investigation Report" rather than utilizing the back of the existing offense report or a continuation page for investigative information. While this is not a standard practice among law enforcement agencies such as the Kentucky State Police, we know of no specific prohibition on this reporting practice. 2 Because Ms. Henson did not request the "investigation reports" relating to the incidents described in her request, we find no error in the Department's disposition of that request. Ms. Henson may, of course, resubmit her request for the "investigation reports" associated with the incident reports already produced.
To avoid elevating form over substance, we believe it is incumbent on the Covington Police Department to treat a request for offense and/or incident reports and "related records," "investigation reports," "investigative notes," and/or "accompanying records" 3 as a request for both the offense report and the investigative report, 4 and respond accordingly. On the issue of access to the investigative information relating to, associated with, or appearing on, the second or back page of an offense report, we direct the parties' attention to 05-ORD-003, a copy of which is attached hereto and incorporated by reference. In that decision, the Attorney General disapproved a local law enforcement agency's policy of blanket nondisclosure of investigative information which, in that case, appeared on the second page of the offense report, concluding that portions of the second page could be redacted only upon a showing of specific harm to the agency, or to a prospective law enforcement action, from premature release of the requested information. Upon resubmission of Ms. Henson's request for the investigation reports associated with or related to the offense reports with which she has already been provided, the Department is obligated to respond in a manner consistent with 05-ORD-003.
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 In light of the Department's admission of an overcharge for postage in the amount of seventeen cents, we believe Ms. Henson is entitled to a seventeen cent reimbursement.
2 Compare KRS 431.450, requiring all law enforcement agencies in the Commonwealth to utilize a uniform citation designed, printed, and distributed by KSP in consultation with the Transportation Cabinet and approved by the Supreme Court.
3 These examples of open records requests are intended to be illustrative and not exhaustive.
4 In Department of Corrections v. Chestnut , (Ky. App.) 2004-CA-001497-MR (December 5, 2005), the Kentucky Court of Appeals declared that "as long as the custodian can identify what documents the applicants wish to see, [KRS 61.872(2)] is satisfied." Although Chestnut is an unpublished opinion that, in accordance with KRS 76.28(4)(c), cannot be cited or used as authority in any other case in any court of the state, it is indicative of the view the courts might adopt in a latter published opinion addressing the degree of specificity required in an open records request. A petition for discretionary review was filed in this case on January 27, 2006.