Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether Kentucky State Police (KSP) violated the Open Records Act by delaying production of an investigative file. We find that KSP committed procedural violations of KRS 61.872(5) by not providing a detailed explanation for delaying production of the requested records beyond three days and has not given the earliest date the production of the record will be complete.
In June, 2016, attorney Chris Osglesby, on behalf of the estate of Dylan Whitaker, requested a copy of the investigative file regarding the death of Mr. Whitaker from the Kentucky State Police (KSP). Emily Perkins, Official Custodian of Records, KSP, replied to Mr. Oglesby that the investigation was still open and denied the request. Mr. Oglesby did not appeal KSP's response but, on February 13, 2017, attorney Alphonse Gerhardstein, now representing the estate, made a request for the investigative file. Ms. Perkins responded on February 22, 2017, stating that the information would be released to the extent required under the Kentucky Open Records Act. She explained that "[d]ue to the storage location of this file, the records are not immediately available," and that "[a] letter updating you on the status of your request should be mailed to you on or before March 22, 2017." Mr. Gerhardstein appealed that response to this office by letter dated February 28, 2017, asking that the entire file be produced immediately due to the impending expiration of the statute of limitations on claims involving Mr. Whitaker's estate. 1
On March 13, 2017, Ms. Perkins responded to the appeal on behalf of KSP, advising that her response of February 22, 2017, had been in compliance with KRS 61.872(5) in advising Mr. Gerhardstein that the records were not immediately available due to their "storage location." She further supported the anticipated production date of March 22, 2017, by citing "the volume of materials to be produced for the investigation, which must be reviewed to ensure confidential information and records are not produced[,] in conjunction with the high volume of requests received and processed by this office." Ms. Perkins also stated that the "written documents contained in the investigation were produced under separate cover" to Mr. Gerhardstein on March 13, 2017, but that attachments to the investigation "such as photographs, audio recordings and video recordings have not yet been received by this office but will be produced as expediently as possible."
In a separate letter to Mr. Gerhardstein, March 13, 2017, Ms. Perkins explained that "the investigation remains technically open . . ." and that "Post 2 personnel were attempting to wait for the evidence logs to become final. . ." before producing the records, and "in a good faith effort to satisfy the request, KSP will move forward with producing the records. Please note that the evidence logs will be subject to change." Ms. Perkins also explained that certain information, such as "[date of birth] , SSN, address, phone numbers, Operator License Numbers" had been redacted pursuant to KRS 61.878(1)(a), and that "pages containing data transmitted through use of a centralized intelligence database were removed pursuant to KRS 17.150(4). . ."
KSP must comply with procedural and substantive requirements of the Open Records Act. The only provision of the Act that authorizes postponement of access to public records beyond three business days, KRS 61.872(5), provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
Here, KSP issued a written response within three business days per KRS 61.880(1), but did not expressly invoke KRS 61.872(5) in its initial response, did not designate the earliest date on which the public record would be available for inspection, and failed to provide a detailed explanation for the delay. KSP's allusion to the delay in producing the record being due to the "storage location" of the records was not a sufficiently detailed explanation for delaying production. "The mere statement that records [are] 'in use' or 'in storage' does not constitute a 'detailed explanation of the cause for further delay.' If merely reciting these phrases were sufficient, the statute's requirement of a 'detailed explanation' would be meaningless." 14-ORD-178. Likewise, stating that a letter would be mailed by March 22, 2017, "updating [Mr. Gerhardstein] on the status of [his] request" does not state the earliest date on which the public record will be available for inspection.
KSP's failure to comply with KRS 61.872(5) constitutes a procedural violation of the Open Records Act. KSP somewhat rectified these deficiencies on appeal by more fully explaining that the investigative file was with KSP Post 2 (Madisonville), and had not been transferred to the KSP Headquarters in Frankfort, where Ms. Perkins would have custody of the file and prepare it for release.
Ms. Perkins also stated in her response to the appeal that the records would be released subject to certain exemptions. She explained that the dates of birth, Social Security Numbers, addresses, phone numbers, and Operator License Numbers would be redacted. This office has previously held that the dates of birth, Social Security numbers, driver's license numbers, addresses, and personal telephone numbers of private individuals have no manifest bearing on how an agency performs its public duties, and therefore this identifying information may be properly redacted under KRS 61.878(1)(a). See 14-ORD-178.
KSP is also withholding "pages containing data transmitted through use of a centralized intelligence database [pursuant to] KRS 17.150(4), which makes such information confidential, and [KRS] 61.878(1)(l), which states that records made confidential by another Act of the General Assembly shall remain exempt from the provisions of the Open Records Act. " Denial of access to centralized criminal history records maintained by KSP in the NCIC database has been approved, pursuant to KRS 17.150(4) , 2 in a series of open records decisions dating back to 1976. 06-ORD-128 (see decisions cited therein). We find no error in withholding information obtained from this centralized intelligence database.
Ms. Perkins further stated that she had not yet received the "audio and video recordings, photographs, and other attachments" and that those records will "take significantly longer to review and redact." Although KSP is apparently acting in good faith to provide the records as expeditiously as possible, it still has not stated the earliest date on which production will be complete, and thus continues to be in violation of KRS 61.872(5).
Despite Mr. Gerhardstein's request to have the records released prior to March 19, 2017, the reasons cited by KSP on appeal for delaying release of the records do not constitute a substantive 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 must 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 Mr. Gerhardstein stated that the statute of limitations for several claims would run "on . . . March 19, 2017."
2 KRS 17.150(4) is incorporated into the Open Records Act through KRS 61.878(1)(l), which exempts: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."