Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in denying John R. Leonhardt's September 25, 2008, request for a copy of the accident report referenced in an accident report he received from KSP as attorney for the estate of Mary Eileen McGrath. Ms. McGrath died "when she struck the rear end of a tractor trailer that had stopped on northbound I-75, apparently due to another injury accident." For the reasons that follow, we find that because KRS 189.635(5) permits the Kentucky State Police to "disclose the identity of a person involved in an accident when his or her identity is not otherwise known," and because the accident report to which requester was afforded access, as attorney for the estate of the individual who died in the accident, specifically referenced "another injury accident" that had stopped traffic and may have been the causative factor in decedent's accident, KSP should affirmatively exercise its discretion under the statute to release the referenced accident report.
In a response dated October 6, 2008, KSP Official Custodian of Records Shiann N. Sharpe advised Mr. Leonhardt that the Department could not honor his request. Ms. Sharpe explained:
KRS 189.635 addresses individuals and representatives that may obtain copies of accident reports. That statute states that reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is a party to the accident, and the insurers of any party who is the subject of the report, or to the attorneys of the parties.
On behalf of KSP, Ms. Sharpe concluded that because Mr. Leonhardt was not "an entitled party outlined in KRS 189.635 ," his request was denied. Shortly thereafter, Mr. Leonhardt initiated this appeal, asserting that "if the other accident was significant enough to be mentioned in [his] client's accident report, " he was entitled to a copy and that, without it, he was "unable to ascertain if that event has any bearing on [his] client's death."
KRS 189.635(5) which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), 1 provides as follows:
All accident reports filed with the Department of Kentucky State Police in compliance with subsection (4) above shall not be considered open records under KRS 61.872 to 61.884 and shall remain confidential except that the department may disclose the identity of a person involved in an accident when his or her identity is not otherwise known or when he or she denies his or her presence at an accident. Except as provided in subsection (9) 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 (8) 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 insurers or their written designee for insurance business purposes of any party who is the subject of the report, or to the attorneys of the parties. 2
While the Attorney General's Office has, on several occasions, recognized that "this specific confidentiality provision overrides the general rule of openness mandated by the Open Records Act, 3 KRS 189.635(5) invests KSP with the discretion to "disclose the identity of a person involved in an accident when his or her identity is not otherwise known . . . ."
Mr. Leonhardt represents the estate of an individual who died "when she struck the rear end of a tractor trailer that had stopped on northbound I-75, apparently due to another injury accident." The accident report that KSP provided to Mr. Leonhardt, as attorney for the decedent's estate, specifically referenced the other "injury accident" in the narrative section of the report, stating:
Unit 1 was traveling North on I-75 in the right lane. Unit 2 was stopped on North I-75 at the 30 mm in the right lane due to another injury accident just North of the 30 mm. Unit 1 was traveling North and failed to recognize that traffic was stopped ahead due to an injury accident. Unit 1 rear ended Unit 2 in the right lane of I-75. Driver of Unit 2 stated that he had been stopped for a few moments due to the road closure.
Given these circumstances, and related liability issues, we believe that KSP may properly exercise its discretion in favor of disclosure of the accident report referenced in the report Mr. Leonhardt has already received. While we do not find that its failure to do so constitutes a violation of the Open Records Act, we urge KSP to revisit this question in light of these observations.
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 KRS 61.878(1)(l) thus provides:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
2 KRS 189.635 was amended in the 2008 Regular Session of the Kentucky General Assembly, resulting in the recodification of certain sections. These amendments have no bearing on the outcome of this appeal.
3 See, e.g., 01-ORD-127; 02-ORD-155; 03-ORD-188; 06-ORD-024.