Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Spencer County Sheriff's Office ("Sheriff's Office") violated the Open Records Act in its disposition of Lawrence Trageser's request for a vehicle accident report where he was not a party to the accident. For the reasons stated below, we find that the Sheriff's Office did not violate the Act.
This appeal involves KRS 189.635, dealing with vehicle accident reports. KRS 189.635(5) 1 exempts vehicle accident reports from the operation of the Open Records Act, and, generally, prohibits release of all accident reports filed with the Kentucky State Police, except to the parties to the accident, the parents or guardians of minors involved in the accident, and their attorneys. The statute, at paragraph KRS 189.635(8)(a) 2, does allow release of the reports to a "news-gathering organization" if the news-gathering organization complies with the requirements of the statute at KRS 189.635 (8)(a)-(e).
Lawrence Trageser ("Appellant") made a request, dated December 4, 2017, to the Sheriff's Office to inspect copies of an accident report involving a Spencer County Sheriff's Deputy. The Sheriff's Office responded on December 5, 2017, denying the request because Appellant does "not meet the requirements set forth in KRS 189.635 of whom may obtain a copy of an accident report. " The Sheriff's Office also cited KRS 61.878(1)(a) as a basis for withholding the traffic accident report. That statute prohibits release of public records where their disclosure "would constitute a clearly unwarranted invasion of personal privacy." Appellant appealed that response, claiming that he meets the criteria listed in KRS 189.635(8) to qualify as a "news-gathering organization."
On appeal, the Sheriff's Office maintained its position that Appellant is not a "news-gathering organization" but also explained that Appellant's request did not contain the information required by KRS 189.635(8)(e). 3 Appellant responded to the Sheriff's Office response by stating that his request was made on a form provided by the Sheriff's Office and that form does not request the information required under KRS 189.635(8)(e).
Appellant provided a copy of the request he submitted to the Sheriff's Office and it is clear that the request is on the Sheriff's Office "Open Records Request Form" and not on a form promulgated by the Department of Kentucky State Police, as required by KRS 189.635(8)(e). Appellant's request does not provide the name and address of the news-gathering organization Appellant represents (required by KRS 189.635(8)(e)1.); does not contain a statement that Appellant is a news-gathering organization under Subsection (8) (required by KRS 189.635(8)(e)2.); does not contain a statement that the request is in compliance with the criteria contained in Subsection (8) (required by KRS 189.635(8)(e)3.); and there is no declaration as to the accuracy and truthfulness of the information provided in the request (required by KRS 189.635(8)(e)4.). Although Appellant may have made his request on a form provided by the Sheriff's Office, KRS 189.635 does not assign the responsibility for distribution of the form (for news-gathering organizations to request accident reports) to the Sheriff's Office and consequently we cannot find fault with the Sheriff's Office for not providing the form described in the statute. As Appellant's request was not in compliance with KRS 189.635(8)(e), we find no violation of the Open Records Act by the Sheriff's Office. We find this lack of compliance with KRS 189.635(8)(e) determinative of this appeal, and we will not further belabor the issue by analyzing whether Appellant's website is a "news-gathering organization" under KRS 189.635(8)(a), or whether the Sheriff's Office's denial was proper under KRS 61.878(1)(a).
Appellant made additional claims against the Sheriff's Department that are not justiciable in an appeal of an open records request. The Office of the Attorney General is only granted the authority under KRS 61.880(2) to issue "a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884," and therefore we make no decision regarding Appellant's other complaints.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 189.635, Subsection (5) states: "All accident reports filed with the Department of Kentucky State Police in compliance with subsection (4) above shall not be considered open records under KRS 61.872 to 61.884 and shall remain confidential except that the department may disclose the identity of a person involved in an accident when his or her identity is not otherwise known or when he or she denies his or her presence at an accident. Except as provided in subsection (9) of this section, all other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (8) of this section. These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is party to the accident, and insurers or their written designee for insurance business purposes of any party who is the subject of the report, or to the attorneys of the parties."
2 KRS 189.635(8)(a) states: "The report shall be made available to a news-gathering organization, solely for the purpose of publishing or broadcasting the news. The news-gathering organization shall not use or distribute the report, or knowingly allow its use or distribution, for a commercial purpose other than the news-gathering organization's publication or broadcasting of the information in the report."
3 KRS 189.635(8)(e) states: "A request under this section shall be completed using a form promulgated by the department through administrative regulations in accordance with KRS Chapter 13A. The form under this paragraph shall include:
1.The name and address of the requestor and the news-gathering organization the requestor represents;
2. A statement that the requestor is a news-gathering organization under this subsection;
3. A statement that the request is in compliance with the criteria contained in this section; and
4. A declaration of the requestor as to the accuracy and truthfulness of the information provided in the request.