Request By:
Patrick T. Malone
Cody Weber
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Patrick T. Malone initiated this appeal by letter dated May 17, 2017, challenging the denial by the Kentucky State Police ("KSP") of his May 9, 2017, request for the "following information: From January 1, 2015, through May 8, 2017, I want to know if my information has been pulled from the databases listed below, who pulled it from the databases, what information was looked up from those databases, and the reason for pulling the information from those databases. " Mr. Malone advised that he was referring to "any databases that [KSP] have access to including, but not limited to, motor vehicle licensing, NCIC [National Crime Identification Center], warrant-related databases, etc. . .." In a timely written response per KRS 61.880(1), Official Custodian of Records Emily M. Perkins advised Mr. Malone that "centralized criminal history records are not subject to public inspection. Consequently, your request is denied in compliance with KRS 17.150(4), which makes the information you are seeking confidential, and KRS 61.878(1)(l), which states that records made confidential by another Act of the General Assembly shall be exempt from provisions" of the Open Records Act. In further support of its denial, KSP cited 13-ORD-127 and quoted 502 KAR 30:060, which provides, in relevant part, that a public "agency or individual shall not confirm the existence or nonexistence of CHRS [Criminal History Record Information] to any person or agency that would not be eligible to receive the information itself."
On appeal, Mr. Malone argued that he is "not requesting information from the database, but requesting information about access to the database, " and that KRS 17.150(4), as construed in 13-ORD-127, therefore does not apply. 1 Upon receiving notification of Mr. Malone's appeal from this office, Ms. Perkins reiterated the agency's original position. KSP further noted, in addressing Mr. Malone's claim, that both initially and on appeal, Mr. Malone specifically asked for "what information was looked up" in the database (s). Regardless of whether Mr. Malone specifically asked for information contained in the database or sought information regarding who accessed the database, KSP concluded, KRS 17.150(4) precludes KSP from disclosing "any records relates to centralized criminal history records." Based upon the following, this office affirms the denial by KSP of Mr. Malone's request.
Resolution of this appeal turns on the application of KRS 17.150(4), pursuant to which:
Centralized criminal history records are not subject to public inspection. Centralized history records mean information on individuals collected and compiled by the Justice and Public Safety Cabinet from criminal justice agencies and maintained in a central location consisting of identifiable descriptions and notations of arrests, detentions, indictments, information, or other formal criminal charges and any disposition arising therefrom, including sentencing, correctional supervision, and release. The information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any proceeding related thereto. Nothing in this subsection shall apply to documents maintained by criminal justice agencies which are the source of information collected by the Justice and Public Safety Cabinet. Criminal justice agencies shall retain the document and no official thereof shall willfully conceal or destroy any record with intent to violate the provisions of this section.
As KSP correctly asserted, KRS 61.878(1)(l) operates to incorporate the mandatory language of this confidentiality provision into the Open Records Act. 2 "Denial of access to centralized criminal history records maintained by KSP in the NCIC database has been approved in a series of open records decisions dating back to 1976." 06-ORD-128, p. 4 (and the decisions referenced therein); 16-ORD-120. This office has also noted that KRS 61.878(1)(k) and (l) extend protection to "information" rather than only "records," which is particularly significant here as KRS 17.150(4) "protects not merely records in physical form, but the information they contain." 13-ORD-167, pp. 4-5 (original emphasis). When local information has been intermingled with information derived "from other law enforcement agencies in the centralized system, the information is not accessible from that source, but may be available from the applicable local law enforcement agency." 05-ORD-230, p. 12, citing OAG 88-63, p. 2. "[T]he necessary implication of the cited decisions is that information derived from the centralized system maintained by the KSP, or 'NCIC information,' which is not readily identifiable, remains confidential by operation of KRS 17.150(4) regardless of whether certain information mirrors that contained in the database of the local law enforcement agency and may be accessible from that source." 05-ORD-230, p. 12; compare 00-ORD-206. Inasmuch as information such as whether anyone has accessed information pertaining to Mr. Malone in the NCIC database, and, if so, who, when, and why, falls within the parameters of KRS 17.150(4), as construed in 13-ORD-167 (requesting, among other things, "a written account" of conversations regarding a certain warrant in the NCIC database and the identity of the individual who entered the warrant into the database) , the instant appeal presents no basis for departing from these precedents. 3
The analysis of 502 KAR 3:060, Section 1 found at pages 4-6 of 13-ORD-127 is equally controlling in this case; a copy of that Open Records Decision is attached hereto and incorporated by reference. KSP enacted 502 KAR 3:060, Section 1, pursuant to a "specific confidentiality statute," and it falls "within the express regulatory authority of the Justice and Public Safety Cabinet." 13-ORD-127, p. 6. Consistent with 13-ORD-127, this office defers to KSP's interpretation of KRS 17.150(4) as embodied in this corresponding regulation. Id. Because Mr. Malone is not entitled to view the NCIC record(s) itself under 502 KAR 3:060, this regulation effectively prohibits KSP from either producing the requested information or denying its existence (certainly as to what information was accessed, if any, or when and why). 13-ORD-127, p. 4. KSP did not violate the Open Records Act in denying Mr. Malone's request on the basis of KRS 17.150(4), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
Either party may appeal this decision by initiating action in the appropriate circuit court per 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