Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
David Hull appeals the Department of Kentucky State Police's denial of Vicky Devore's request for "all complaints made against Trooper Michael McPherson" and "all documents pertaining to any disciplinary actions or warnings directed toward Trooper McPherson for unprofessional, wrongful, or illegal acts that he may have committed while in [KSP's] employ." 1 Ms. Devore is David Hull's mother-in-law. Prior to the submission of her request, Mr. Hull submitted two complaints about Trooper McPherson. The first, dated November 7, 2013, alleged that Trooper McPherson committed perjury while testifying before the grand jury. The second, an undated complaint, alleged that Trooper McPherson maligned Mr. Hull for his organizational associations before the grand jury. KSP denied the request stating that "a search of Kentucky State Police records was conducted and no records were found." Mr. Hull appealed the denial, attaching copies of his complaints against Trooper McPherson as proof of the existence of responsive records.
KSP subsequently advised the Attorney General:
KSP Policy AM-E-1, which pertains to the Agency Disciplinary System, states on page 6 that "Complaints may be classified as correspondence if an allegation of misconduct does not constitute a policy violation and thus does not warrant an administrative inquiry or internal affairs investigation." The letter from Appellant regarding McPherson was treated as correspondence; thus, when Ms. Devore's request for complaints and disciplinary records was received a search for records classified as complaints and disciplinary records was conducted. General correspondence 2 was not searched for records as it was outside the scope of Ms. Devore's request. There are no agency records classified as complaints or disciplinary records regarding Trooper McPherson.
KSP explained that Policy AM-E-1 "is an effort to keep the law enforcement officer's record free of frivolous complaints." KSP acknowledged that a search for records relating to Trooper McPherson's leaves of absence and medical condition "may have been overlooked, " but asserted that any such records that "may be on file regarding Trooper McPherson are exempt from disclosure pursuant to KRS 61.878(1)(a), as the disclosure of [his] private health records would constitute a clearly unwarranted invasion of privacy."
KSP denied the existence of responsive records based on a narrow reading of Ms. Devore's request that excluded letters filed in correspondence, under Policy AM-E-1, even though the letters could have pertained to "disciplinary actions or warnings" directed toward Trooper McPherson. 3 See Ms. Devore's Request. Indeed, Mr. Hull's letters were responsive to that request as they alleged the trooper perjured himself and maligned Mr. Hull before the grand jury. Accordingly, KSP violated the Act by failing to conduct a search of its correspondence files to locate them.
Because KSP acknowledges that it "overlooked" Ms. Devore's request for records relating to Trooper McPherson's leaves of absence and specified medical condition, it also violated the Open Records Act by failing to "make all reasonable efforts to locate records responsive to the requester's application" and to prove that the "decision to withhold responsive records, [if any] was justified under the Act." City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 843, 855 (Ky. 2013).
Either party is entitled to appeal this decision by initiating action in the appropriate circuit court under KRS 61.880(5) and KRS 61.882. The Attorney General should be notified of any circuit court action but should not be named as a party in that action or in any subsequent proceedings. KRS 61.880(3).
Distributed to:
David Wayne HullEmily M. PerkinsMorgain Sprague
Footnotes
Footnotes