Opinion
Opinion By: Gregory D. Sumba, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Scott County Public Schools violated the Open Records Act in the disposition of Aaron L. Wilson's April 11, 2006, request to inspect "[t]he Civil Applicant Responses from the F.B.I. and the Criminal Records Dissemination Section Reports from the K.S.P. for current certified and certified emergency substitutes, including, but not limited to [227 individuals identified by the first letters of their last names]." For the reasons that follow, and based on the authorities cited, we affirm the District's denial of Mr. Wilson's request. To the extent that 03-ORD-141 is inconsistent with this decision, it is hereby overruled.
By letter dated April 14, 2006, the District's contract legal counsel, Robert L. Chenoweth, asserted that the requested records are shielded from public inspection by 28 U.S.C. § 534(a)(1), (a)(4), and (b), incorporated into the Open Records Act by operation of KRS 61.878(1)(k), 1 and KRS 17.150(4), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 2 With reference to federal criminal identification records, the District maintained that "receipt of [these] records from the F.B.I. is explicitly governed by the above federal statutes, and the . . . District would risk the discontinuation of any ability to obtain [the] records on teacher applicants if these . . . records are disseminated to the general public."
In a similar vein, the District asserted that KRS 17.150(4) mandates nondisclosure of the requested state criminal records, reasoning:
[T]he School District receives these criminal history reports from the Kentucky State Police pursuant to KRS 61.878(5) 3 ( see OAG 77-28), [and] the exemption from disclosure to the public contained in KRS 17.150(4) is believed to continue to apply to these records and, by extension, to the . . District.
On this basis, the District argued, KRS 61.878(1)(k) and (l) compel nondisclosure of the requested criminal history records. 4 We agree.
In 03-ORD-141 this office determined that KRS 61.878(1)(a) did not authorize the Bullitt County Board of Education to withhold, inter alia, national and state criminal history background checks required by KRS 160.380 5 as a condition of employment. Recognizing "the compelling public interest in confirming that school employees charged with the supervision and education of our students are of good character," we held that the public interest in disclosure of the legally required criminal records check outweighed the privacy interests of the applicants for employment in those records. The school district did not, in that instance, invoke any statutory restriction on access, a fact noted at page five of the decision, and this office did not address the applicability of 28 U.S.C. § 534(a) and (b), or KRS 17.150(4), to the requested records.
In an earlier, but factually dissimilar, open records decision, this office held that the cited federal confidentiality provision authorized Eastern Kentucky Correctional Complex to deny an inmate's request for his F.B.I. rap sheet. 97-ORD-178. At page two of that decision, we observed:
[EKCC] relied on KRS 61.878(1)(k) and 28 U.S.C. § 534. KRS 61.878(1)(k) excludes from the application of the Open Records Act "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation [.]" This provision operates in tandem with 28 U.S.C. § 534 to prohibit disclosure of FBI rap sheets by a state correctional facility like EKCC. 28 U.S.C. § 534(a)(1) and (4) imposes upon the United States Attorney General the duty to "acquire, collect, classify, and preserve identification, criminal identification, crime, and other records" and to "exchange such records and information with, and for the use of, authorized officials of the Federal Government, the States, cities, and penal and other institutions." (Emphasis added.) Pursuant to 27 U.S.C. § 534(b), "[t]he exchange of records and information authorized [by the foregoing provision] is subject to cancellation if dissemination is made outside the receiving departments or related agencies." Under this provision EKCC risks cancellation of its records exchange arrangement with the FBI if it releases the inmate's rap sheet to the inmate or anyone else other than authorized officials at EKCC and the Corrections Cabinet.
With reference to the applicability of KRS 17.150(4) to centralized criminal history records maintained by the Kentucky State Police, this office very recently reaffirmed the longstanding principle that access to such records may properly be denied. 06-ORD-128. These are the precise arguments that the Scott County Board of Education advances in support of its denial of Mr. Wilson's request, and that are, in our view, dispositive of the issues he raises.
In
U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 478 U.S. 749, 753 (1989), the United States Supreme Court recognized that because "[a]rrests, indictments, convictions, and sentences are public events that are usually documented in court records," information contained in criminal identification records, commonly known as "rap sheets, " is a matter of public record. Nevertheless, the Court noted, "the availability and dissemination of the actual rap sheet to the public is limited." Id. The Court described the origin and intended uses of the records as follows:
In 1924 Congress appropriated funds to enable the Department of Justice (Department) to establish a program to collect and preserve fingerprints and other criminal identification records. 43 Stat. 217. That statute authorized the Department to exchange such information with "officials of States, cities and other institutions." Ibid. Six years later Congress created the FBI's identification division, and gave it responsibility for "acquiring, collecting, classifying, and preserving criminal identification and other crime records and the exchanging of said criminal identification records with the duly authorized officials of governmental agencies, of States, cities, and penal institutions." Ch. 455, 46 Stat. 554 (codified at 5 U.S.C. 340 (1934 ed.)); see 28 U.S.C. 534(a)(4) (providing for exchange of rap-sheet information among "authorized officials of the Federal Government, the States, cities, and penal and other institutions"). Rap sheets compiled pursuant to such authority contain certain descriptive information, such as date of birth and physical characteristics, as well as a history of arrests, charges, convictions, and incarcerations of the subject. Normally a rap sheet is preserved until its subject attains age 80. Because of the volume of rap sheets, they are sometimes incorrect or incomplete and sometimes contain information about other persons with similar names.
The local, state, and federal law enforcement agencies throughout the Nation that exchange rap-sheet data with the FBI does so on a voluntary basis. The principal use of the information is to assist in the detection and prosecution of offenders; it is also used by courts and corrections officials in connection with sentencing and parole decisions. As a matter of executive policy, the Department has generally treated rap sheets as confidential and, with certain exceptions, has restricted their use to governmental purposes. Consistent with the Department's basic policy of treating these records as confidential, Congress in 1957 amended the basic statute to provide that the FBI's exchange of rap-sheet information with any other agency is subject to cancellation "if dissemination is made outside the receiving departments or related agencies." 71 Stat. 61; see 28 U.S.C. 534(b).
Reporters Committee at 753.
Resolution of 97-ORD-178 turned on the application of 28 U.S.C. § 534(b) to the requested records. This office did not consider the application of 28 U.S.C. § 534(b) to the requested records in 03-ORD-141 because the school district did not invoke the provision or raise this argument. Had it done so, the outcome of that portion of the open records decision would have been entirely different. As a "public record the disclosure of which is prohibited by federal law or regulation, " a criminal identification record obtained from the F.B.I. may properly be withheld under authority of KRS 61.878(1)(k). We find no error in the Scott County Public Schools' denial of Mr. Wilson's request. See also, 20 U.S.C. § 1232g(b)(1) (restricting nonparental access to student education record through the withholding of federal funds). To the extent that the decision we reach today is inconsistent with our decision in 03-ORD-141, the latter decision is hereby overruled.
We find additional support for the District's denial of Mr. Wilson's request in KRS 17.150(4), a state confidentiality provision not considered, because not raised by the school district, in 03-ORD-141. KRS 17.150(4) thus provides:
Centralized criminal history records are not subject to public inspection. Centralized history records mean information on individuals collected and compiled by the Justice Cabinet from criminal justice agencies and maintained in a central location consisting of identifiable descriptions and notations of arrests, detentions, indictments, information, or other formal criminal charges and any disposition arising therefrom, including sentencing, correctional supervision, and release. The information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any proceeding related thereto. Nothing in this subsection shall apply to documents maintained by criminal justice agencies which are the source of information collected by the Justice Cabinet. Criminal justice agencies shall retain the documents and no official thereof shall willfully conceal or destroy any record with intent to violate the provisions of this section.
In a line of decisions dating back to 1976, this office has opined that centralized criminal history records maintained by the Kentucky State Police enjoy protection under the cited provision, which is incorporated into the Open Records Act as a "public record[] . . . the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." KRS 61.878(1)(l); see, e.g., OAG 76-604; OAG 77-28; OAG 82-288; OAG 88-63. Compare, 00-ORD-206; 05-ORD-230; 06-ORD-128. This provision, which was no doubt prompted by the legislative "recognition [that] the power of compilations to affect personal privacy . . . outstrips the combined power of the bits of information contained within" Reporters Committee at 765, 6 operates as a statutory bar to disclosure of centralized criminal history records in the hands of the Kentucky State Police.
The Scott County Public Schools acknowledge that the restrictions on access found at KRS 17.150(4) do "not apply to documents maintained by criminal justice agencies which provide information to the Justice Cabinet," but note that the statute "does not contain a similar exemption for state agencies that receive this information from the Justice Cabinet." (Emphasis in original.) It is the District's position that because the records were obtained from the Cabinet under the agency sharing provision of the Open Records Act, codified at KRS 61.878(5), it is bound to observe the same restrictions on access that bind the Cabinet. We fully agree. In an early open records decision, the Attorney General recognized that "the sharing of information among public . . . .agencies does not mean that such information can be made available to the public if it is of a confidential nature." OAG 77-666, cited in 93-ORD-132, p. 3. In the latter decision, we observed that the receiving agency "should exercise great caution . . . and protect against the general release or publication of the materials [received]." Id. Extending the logic of these decisions to the instant appeal, we find that the Scott County Public Schools are statutorily obligated to maintain the confidentiality of the centralized criminal history records obtained from the Justice Cabinet and KSP under authority of KRS 61.878(5). We find no error in the District's denial of Mr. Wilson's request on this basis, and, as noted, overrule 03-ORD-141 to the extent that decision is inconsistent with our present holding.
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.
Aaron L. Wilson101 Flintroy CourtGeorgetown, KY 40324-1835
Dallas J. Blankenship, Superintendent Scott County Schools2168 Frankfort Pk.P.O. Box 578Georgetown, KY 40324
Robert L. Chenoweth121 Bridge StreetFrankfort, KY 40601
Footnotes
Footnotes
1 KRS 61.878(1)(k) authorizes public agencies to withhold:
All public records or information the disclosure of which is prohibited by federal law or regulation [.]
2 KRS 61.878(1)(l) authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]
3 KRS 61.878(5) promotes agency sharing of otherwise exempt public records by providing:
The provisions of this section shall in no way prohibit or limit the exchange of public records or the sharing of information between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function.
4 The District argued, in the alternative, that fulfilling Mr. Wilson's request would impose an unreasonable burden within the meaning of KRS 61.872(6). Because we affirm the District's denial of that request on the basis of the federal and state confidentiality provisions, we do not address the propriety of the district's reliance on this provision.
5 KRS 160.380 provides, in pertinent part:
(4) (a) Beginning January 1, 1999, a superintendent shall require a national and state criminal background check on all new certified hires in the school district and student teachers assigned within the district. Excluded are certified individuals who were employed in another certified position in a Kentucky school district within six (6) months of the date of hire and who had previously submitted to a national and state criminal background check for the previous employment.
(b) The superintendent shall require that each new certified hire and student teacher, as set forth in paragraph (a) of this subsection, submit to a national and state criminal history background check by the Kentucky State Police and the Federal Bureau of Investigation.
(c) All fingerprints requested under this section shall be on an applicant fingerprint card provided by Kentucky State Police. The fingerprint cards shall be forwarded to the Federal Bureau of Investigation from the Kentucky State Police after a state criminal background check is conducted. The results of the state and federal criminal background check shall be sent to the hiring superintendent. Any fee charged by the Kentucky State Police and the Federal Bureau of Investigation shall be an amount no greater than the actual cost of processing the request and conducting the search.
(d) The Education Professional Standards Board may promulgate administrative regulations to impose additional qualifications to meet the requirements of Public Law 92-544.
(5) A superintendent shall require a state criminal background check on all classified initial hires.
(a) The superintendent shall require that each classified initial hire submit to a state criminal history background check by the Kentucky State Police. If an applicant has been a resident of Kentucky twelve (12) months or less, the superintendent may require a national criminal history background check as a condition of employment.
(b) Any request for records under this section shall be on an applicant fingerprint card provided by Kentucky State Police. The results of the state criminal background check and the results of the national criminal history background check, if requested under the provisions of paragraph (a) of this subsection, shall be sent to the hiring superintendent. Any fee charged by the Kentucky State Police shall be an amount no greater than the actual cost of processing the request and conducting the search.
6 On this issue, the U.S. Supreme Court observed:
Plainly there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information.
Reporters Committee at 764.