Opinion
Opinion By: Andy Beshear,Attorney General;Mitchel T. Denham,Assistant Deputy Attorney General
Open Records Decision
Robert D. Cron appeals Butler County Sheriff Scottie Ward's handling of Mr. Cron's July 20, 2015, request for copies "of all records pertaining to the disbursements of all public monies in the Sheriff's Drug Seizure Fund from January 1, 2011, through June 25, 2015." On behalf of Sheriff Ward, Butler County Attorney Richard J. Deye responded to Mr. Cron's request on July 23, advising him that the records identified in his request were "available Monday through Friday from 8:00 a.m. until 4:00 p.m., in the office of the Butler County Sheriff." Mr. Deye suggested that Mr. Cron consider making an appointment before his arrival to ensure that the records were "readily available" when Mr. Cron arrived. He also advised Mr. Cron that there would be a ten cents per page charge if he wished to obtain copies of the requested records.
On September 17, Mr. Cron conducted his inspection of 105 responsive records in the Sheriff's office. He asserts, and his assertion is uncontroverted, that the records he inspected were unredacted. He then asked for copies of the records he inspected but received, instead, redacted copies of the records. 1 The Sheriff redacted signatures and account numbers without citation to statutory authority or explanation. Additionally, Mr. Cron states that the pagination of the records indicated that some records were entirely withheld. 2 Mr. Cron subsequently asked that Mr. Deye review the redacted records to explain the redactions. Those records were returned to him shortly thereafter along with a letter from Sheriff Ward. The sheriff acknowledged that "certain information was redacted consisting primarily of the account numbers and signatures. " He offered no explanation for the ostensibly missing records. In support of the redactions, Sheriff Ward cited "KRS 61.880 and KRS 61.878," explaining that this information was redacted "to prevent possible 'hacking. '" The sheriff proceeded to explain his concern about the account numbers being used inappropriately if they fell into the wrong hands. He did not contest Mr. Cron's assertion that Mr. Cron reviewed the unredacted records "before the photocopies were made." The sheriff did not address any potential missing records.
Right to Apply Exemptions to Copies of Records
The first issue is whether or not the sheriff waived the right to apply redactions due to the previous on-site review of unredacted records by Mr. Cron. KRS 61.874(1), in pertinent part, clearly states:
"[u]pon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof, and to obtain copies of all public records not exempted by the terms of KRS 61.878." (emphasis added).
Thus, the Open Records Act permits individuals to not only inspect records on-site, but also to obtain copies of the records. However, the right to both on-site inspections and receiving copies are limited by the exemptions found in KRS 61.878. In 15-ORD-101, this office stated that "an agency's inadvertent actions or mistakes in releasing records does not estop the agency's denial of subsequent requests for similar records." This reasoning is both legally grounded and practical. Take, for example, a situation where an agency inadvertently discloses the name of a victim of child sexual abuse through sloppy redaction procedures. The public release of the identity of this vulnerable child is clearly exempt (and confidential) pursuant to several exemptions depending on the specifics of the situation. 3 An agency which later discovers this error should not be prohibited from doing all it can to protect the identity of this vulnerable child pursuant to the exemptions found in the Act.
Thus, the right to obtain copies of public records is still limited by legitimate exemptions found in KRS 61.878(1). If an agency has inadvertently disclosed legitimately exempt material during an on-site inspection, it is still possible for the agency to apply legitimate exemptions to copies produced to any requestor. This includes the individual who viewed the records on-site. However, because of the broad range of possible waiver scenarios, these cases should be reviewed on a case-by-case basis.
Public Bank Account Numbers
The sheriff redacted the account numbers of the agency's asset forfeiture account in the copies sent to Mr. Cron. To support this, the sheriff cites generally to "KRS 61.880 and KRS 61.878," explaining that this information was redacted "to prevent possible 'hacking' ." The sheriff proceeded to explain his concern about the account numbers being used inappropriately if they fell into the wrong hands.
The Kentucky Court of Appeals has held that redaction of private information such as social security numbers should be redacted from public records pursuant to KRS 61.878(1)(a). Hines v. Department of Treasury, 41 S.W.3d 872 (Ky. App. 2001). This reasoning applies to private bank account numbers. See 98-ORD-7. In addition, this office has held that a public agency's bank account numbers are exempt from disclosure pursuant to KRS 61.872(6). OAG 89-61; 06-ORD-167. The reasoning behind these decisions is if an agency disclosed this type of information, public money would be at risk of theft. A public agency would be forced to change bank accounts and change the paperwork associated therewith. This makes the disclosure of public bank accounts overly burdensome under the Open Records Act. Therefore, the Butler County Sheriff did not violate the Act by redacting his asset forfeiture account number from the responsive documents. 4
Signatures of Sheriff and Deputies
The sheriff also redacted the signatures from the checks of the asset forfeiture account. He cites the same reasoning as for the account number redaction stating that someone could electronically produce the signature. However, we can find no authority for withholding the name and signature of a public official who signs a public document. In fact, the public has an interest in knowing which public official authorized an expenditure of public funds. See 05-ORD-140. Nor do we find any merit in the sheriff's argument regarding re-production of the electronic signature. This is particularly true because his signature appears on his letter to Mr. Cron. It almost certainly appears on numerous other public documents, such as his papers to run for public office. Therefore, the sheriff violated the Open Records Act by redacting these signatures. He must provide these records to the requestor with the signatures.
Missing Records
Mr. Cron states there are records missing from the production which he was previously permitted to review on-site. From the page numbers on the bank records, it appears he is correct. The sheriff did not address this in either his correspondence to Mr. Cron and Mr. Deye, responding to this appeal on behalf of the sheriff, states that he simply does not know if this is the case or not. Accordingly, this office does not have adequate information to determine whether or not records were wholesale excluded from the production. Regardless, the sheriff has not satisfied his obligation under the Act to specifically address the request to either the requestor or to this office. KRS 61.880(1); See City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 852 (Ky. 2013). Therefore, the sheriff violated the Open Records Act by not specifically addressing the issue of the missing records. If these records do exist, he must provide them to the requestor subject to the appropriate redactions discussed herein.
Either party may appeal this decision 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.
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