Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Tompkinsville Police Department violated KRS 61.880(1) by failing to respond to Chester L. Taylor, Jr.'s, February 5, 2011, request for seven categories of records maintained by the Department, and by failing to provide, even belatedly, a legitimate statutory basis for withholding those records.
On February 5, Mr. Taylor requested copies of the Department's April 2, 2009, duty roster and communications log. In addition, he requested:
. an index or log of "all nonemergency communications between the Department and the Clay County Tennessee Sheriff's Office between March 30, 2009, and April 3, 2009";
. an index or list of "all Department purchased/owed cellular telephones and to whom the units were assigned on April 2, 2009";
. an index or list of "all Department personnel who were certified and trained law enforcement officers on April 2, 2009";
. "the name and service of process address of the individual or office which keeps and maintains payroll records for the Department"; and
. the complaint filed with the Department alleging that Michael Wayne Dunnigan made an harassing communication on October 24, 2008.
Mr. Taylor's request went unanswered prompting him to initiate this open records appeal.
In correspondence directed to this office after Mr. Taylor initiated his appeal, Colonel Dale Ford, Chief of the Tompkinsville Police Department, advised that the Department "failed to get [the] first request for whatever reason." 1 Continuing, he observed:
This case was not handled through the Tompkinsville Police Department. This was a personal problem between my son and Dunnigan! My son was a juvenile at the time, and a warrant was taken through the County Attorney's Office and executed by Monroe [illegible].
These facts do not constitute a legally recognized basis for denying access to operational records of a public agency.
The exceptions to the Open Records Act are codified at KRS 61.878(1)(a) through (n) and are exclusive. 2 Pursuant to KRS 61.871, they must be "strictly construed." The existence of these exceptions, Kentucky's Supreme Court has observed, compels the conclusion that:
With respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for governmental confidentiality. A cursory examination of KRS 61.878 reveals an extensive list of matters excluded from public access, and this also suggests an absence of legislative intent to create unrestricted access to records.
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 578 (Ky. 1994).
It is incumbent on an agency resisting disclosure of public records to "include a statement of the specific exception authorizing the withholding of the records and a brief explanation of how the exception applies to the records withheld." KRS 61.880(1). The burden of proof in sustaining public agency action relative to an open records request "rests with the agency," 3 and, in taking action, the agency must be guided by the statement of legislative policy codified at KRS 61.871, recognizing that "free and open examination of public records is in the public interest," 4 and case law recognizing that the Open Records Act "exhibits a general bias favoring disclosure. " 5 Although "the concept of governmental confidentiality has not been totally diluted by the Open Records Act, " 6 public agency denial of a records request must be grounded in one or more of the statutory exceptions found at KRS 61.878 or incorporated into KRS 61.878 by operation of sections (1)(k) and (1)(l) of that statute.
Given the nature of Mr. Taylor's request to the Tompkinsville Police Department, it is irrelevant that the Department did not investigate the personal dispute between Colonel Ford's son and Michael Wayne Dunnigan. With the exception of the seventh enumerated request, seeking access to the complaint filed with the Department and alleging that Michael Dunnigan made an harassing communication on October 24, 2008, none of the requests relate to that particular incident. Instead, Mr. Taylor seeks access to the Department's operational records, including duty rosters, communications logs, cell phone inventories, cumulative personnel reports identifying certified law enforcement officers, and records identifying the Department's records custodian. 7 Regardless of whether his inquiry was prompted by the incident, the records to which Mr. Taylor requested access are public records, and any available exception that might be invoked to support their nondisclosure must be deemed waived if not asserted. 03-ORD-042, p. 5. ("An exception not invoked by an agency in its response to an open records request is an exception waived by the agency when its denial is appealed to the Attorney General"). Having failed to assert any statutory exceptions authorizing nondisclosure of the records identified in Mr. Taylor's request, we find that the Tompkinsville Police Department violated the Open Records Act in withholding those records.
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.
Distributed to:
Chester L. Taylor, Jr.Col. Dale Ford
Footnotes
Footnotes
1 Mr. Taylor provided this office with copies of a certified mail return receipt for his request signed by "Wendell Owen" as well as a USPS Track & Confirm Search Result reflecting that his request was delivered at 11:55 a.m. on February 7, 2011. Colonel Ford offers no explanation why, under these circumstances, the letter failed to reach his office. Absent a plausible explanation for its failure to respond, we must conclude that the Department violated KRS 61.880(1).
2 KRS 61.878(1)(k) and (l) extend protection to public records the disclosure of which is prohibited or otherwise made confidential by federal or state law. By virtue of these exceptions, the statutory restrictions on public access extend beyond the fourteen exceptions found at KRS 61.878(1)(a) through (n).
3 KRS 61.880(2)(c).
4 KRS 61.871.
5 Kentucky Board of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992).
6 Courier-Journal and Louisville Times Co. v. Jones, 815 S.W.2d 6, 8 (Ky. App. 1995).
7 KRS 61.876(1) and (2) require public agencies to adopt and post rules and regulations "in conformity with the provisions of KRS 61.870 to 61.884" governing access to the agencies' records that include, among other things, the agencies' principal office and the title and address of the official custodians of the agencies' records. This document would no doubt satisfy Mr. Taylor's request for the "name and service of process address" for the individual who maintains payroll records.