Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Taylorsville Police Department and the Taylorsville City Clerk violated the Open Records Act in the disposition of Lawrence Trageser's November 17, 2013, request for police records relating to a domestic abuse incident. For the reasons stated below, we find that the City improperly denied the request.
Mr. Trageser's November 17 letter requested "any and all documents reflecting a City of Taylorsville Police Report filed and or created, concerning a domestic abuse call complaint involving Nathan Nation and Abigail Nation at [address omitted]. The date of the incident should be late night September 12 or early morning September 13, 2013." On November 20, 2013, City Clerk Stephen A. Biven replied:
Your request has been forwarded to our city attorney to determine whether or not any part of your request falls under the exemptions as listed in KRS 61.878(1). I anticipate a response by 4:00 p.m., November 25th.
Mr. Trageser appealed to the Attorney General on November 22, 2013, alleging that the City had failed to respond within three days.
We cannot find a definite procedural violation as to the timeliness of the response. KRS 61.880(1) allows a public agency three days from receipt of an open records request in which to issue a written response, excluding weekends and legal holidays. November 17, 2013, the date appearing on Mr. Trageser's request, was a Sunday; therefore, the first day on which it could have been mailed was Monday, November 18. There is no indication in the record that the City actually received the request prior to Wednesday, November 20, 2013; thus, given the intervening weekend, the last day for the City to issue a response would have been Monday, November 25, 2013.
If the request was received prior to November 20, however, 1 then the City did commit a procedural violation of KRS 61.880(1), since the only statutory exception to the three-day rule is KRS 61.872(5), in the event a record is "in active use, in storage or not otherwise available." The mere fact that a public agency's attorney is reviewing a request does not make the records unavailable; thus, KRS 61.872(5) does not apply. In any event, the record is inconclusive as to when the request was received.
The City did ultimately respond on November 25, with a letter from the City Clerk stating in pertinent part as follows:
The City does possess a JC-3 Form regarding the complaint in question. According to the Kentucky State Police, JC-3 Forms under KRS 620.050, are confidential reports and are only available through the Cabinet for Health and Family Services.
We presume from this response that the JC-3 form ("Child Abuse, Adult Abuse, and Domestic Abuse Standard Report," used for reporting suspected incidents of abuse) is the only record possessed by the City in relation to the incident in question. 2
City attorney John D. Dale, Jr., states as follows in his December 6, 2013, response to this appeal:
Following a review of this matter, it was determined a JC-3 form was prepared by the City Police involving allegations of abuse between a husband and wife, which is a confidential report pursuant to KRS 620.030 and KRS 620.050.
?
As it turned out, the document he wanted to inspect was not exempt as first thought under KRS 61.878(1), but rather under KRS 61.878(1)(2)(L) [sic], "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
In addition to the fact that the City's November 25 response failed to cite KRS 61.878(1)(l) as required by KRS 61.880(1), 3 we find the referenced sections of the Unified Juvenile Code, KRS 620.030 and KRS 620.050, inapplicable to the record at issue in this appeal.
KRS 620.030 contains the obligation for persons to report suspected cases of a dependent, neglected, or abused child. KRS 620.050(5) contains the confidentiality provision for a "report of suspected child abuse, neglect, or dependency." (Emphasis added.) There is nothing in KRS 620.050 to suggest that "allegations of abuse between a husband and wife, " as Mr. Dale describes the incident, are included in the scope of this statute. The mere fact that a JC-3 form can be used to report child abuse as well as adult abuse does not extend the reach of a confidentiality provision in the Unified Juvenile Code to include cases not involving children.
We find that the City failed to meet its burden under KRS 61.880(2)(c) to support its invocation of KRS 61.878(1)(l), since the cited statutes, KRS 620.030 and KRS 620.050(5), do not apply to the record in question. Accordingly, the City's disposition of Mr. Trageser's request was in violation of the Open Records Act.
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:
Mr. Lawrence TrageserJohn D. Dale, Jr., Esq.Mr. Stephen A. Biven
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