24-ORD-113
May 3, 2024
In re: Makayla Triplett/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) did not violate the Open
Records Act (“the Act”) when it withheld from inspection under
KRS 61.878(1)(a) and KRS 17.150(4) intelligence and investigative
reports regarding a criminal case in which prosecution has not
concluded. KSP did not violate the Act when it denied a portion of the
request that sought information without describing public records to be
inspected. KSP also did not violate the Act when it did not provide
records that do not exist.
Open Records Decision
On January 2, 2024, Makayla Triplett (“Appellant”) submitted a request to
KSP for “a copy of the case file for [a specific individual].” In a timely response, KSP
provided responsive, nonexempt records but redacted portions of the records under
KRS 61.878(1)(a) and stated it could not locate additional responsive records. On
February 21, 2024, the Appellant requested “more specific records from the case file,”
which she described using specific page numbers. She also sought the handwritten
statement from a specific witness and asked KSP to identify two sets of numbers from
a record KSP had previously provided.1 In a timely response, KSP provided “all
releasable records regarding” the case file and the handwritten witness statement.
However, KSP withheld certain criminal history information under KRS 17.150(4),
which is incorporated into the Act by KRS 61.878(1)(l). KSP also withheld polygraph
examination records under KRS 61.878(1)(j), and further stated the Act does not
require it to “answer questions or provide information.” This appeal followed.2
1
In her February 21 request, the Appellant also sought records related to three “key people
involved.” On appeal, the Appellant states that she is not appealing this portion of the request.
2
To provide context to her appeal, the Appellant attached several other requests submitted by her
and her aunt and KSP’s responses to those requests. Those requests are not at issue in this appeal.
First, the Appellant has clarified that she is “solely asking for an appeal regarding [the specificOn appeal, KSP asserts that it properly redacted “social security numbers,
addresses, and telephone numbers” from the records it produced under
KRS 61.878(1)(a). KSP also asserts that it properly withheld an audio recording of an
anonymous tip under KRS 61.878(1)(a). However, KSP now claims the polygraph
examination records are exempt under KRS 61.878(1)(a) instead of KRS 61.878(1)(j).
KRS 61.878(1)(a) exempts from disclosure “[p]ublic records containing information of
a personal nature where the public disclosure thereof would constitute a clearly
unwarranted invasion of personal privacy.” This exception requires a “comparative
weighing of the competitive interests” between personal privacy and the public
interest in disclosure. Ky. Bd. of Exam’rs of Psychologists v. Courier-Journal &
Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). However, when the public
agency fails to articulate a privacy interest, “the balance is decisively in favor of
disclosure.” 10-ORD-082; see also 20-ORD-033; 19-ORD-227. The burden of proof
rests with the public agency to sustain its denial of a request to inspect public
records. KRS 61.880(2)(c).
KSP is correct that “social security numbers, addresses, and telephone
numbers” should be redacted under KRS 61.878(1)(a). See Ky. New Era, Inc. v. City
of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013) (holding phone numbers, addresses,
driver’s license numbers may be routinely redacted under KRS 61.878(1)(a)). Thus,
KSP did not violate the Act when it redacted that information from the records.
Regarding the audio recording of an anonymous tip, KSP alleges that release
of this recording “would have a chilling effect on those who might otherwise seek
assistance of law enforcement” because the tipster’s identity could be identified by
his or her voice. Although the Office has declined to establish a blanket rule holding
all 911 recordings are exempt under KRS 61.878(1)(a), see, e.g., 24-ORD-086, the
exemption may apply to certain types of 911 calls. See Bowling v. Brandenburg, 37
S.W.3d 785, 788 (Ky. App. 2000) (911 calls reporting a domestic violence incident).
The Supreme Court of Kentucky has also held that a person’s explicit request to
remain anonymous in their dealings with a public agency may tilt the privacy scales
in his or her favor. See Cape Publ’ns, Inc. v. Univ. of Louisville Foundation, Inc., 260
individual’s] case file.” Second, the Appellant’s aunt does not appear to be a resident of the
Commonwealth and has not appealed KSP’s denial of her request because she did not qualify as a
“resident of the Commonwealth” under KRS 61.870(10). The Office has previously held that “because
a nonresident has no statutory right to inspection, a public agency cannot violate the Act by denying
a nonresident’s request.” 24-ORD-034 n.1. Accordingly, because the Appellant’s aunt does not appear
to be resident, and the Appellant has specified she only seeks review of the denials of her January 2
and February 21 requests, the Office will limit its analysis to those two requests.S.W.3d 818, 823–24 (Ky. 2008) (the names of anonymous donors to the University of
Louisville Foundation were exempt because the donors were assured anonymity).
Finally, other exemptions to the Act support the public policy that anonymous law
enforcement sources should be permitted to retain their anonymity. Cf.
KRS 61.878(1)(h) (exempting law enforcement records that would “reveal[ ] the
identity of informants not otherwise known”); KRS 17.150(2)(a) (exempting law
enforcement “intelligence and investigative reports” that would reveal “[t]he name or
identity of any confidential informant or information which may lead to the identity
of any confidential informant”). For all these reasons, KSP did not violate the Act
when it withheld an audio recording of an anonymous tip.
Regarding the Appellant’s request for portions of the case file that include
polygraph tests and reports, the Office has previously held that “[p]olygraph tests
and polygraph examiner’s reports may also be withheld from public inspection under
KRS 61.878(1)(a).” See 15-ORD-093; 04-ORD-245 (“The public interest in the
questions and answers on a polygraph test is not outweighed by the potential invasion
of a person’s privacy by the release of such material.”); see also OAG 90-144;
OAG 86-39; OAG 86-22; OAG 83-260. Thus, KSP did not violate the Act when it
withheld portions of the case file which included polygraph tests and reports.
KSP also maintains that it properly withheld portions of the case file that
contained “information and records obtained from the [National Crime Information
Center] database” under KRS 17.150(4). KRS 17.150(4) provides that “[c]entralized
criminal history records are not subject to public inspection.” KRS 17.150(4) is
incorporated into the Act by KRS 61.878(1)(l), which exempts from inspection public
records the disclosure of which is prohibited by enactment of the General Assembly.
The Office has previously upheld the “denial of access to centralized criminal history
records maintained by KSP in the NCIC database . . . in a series of open records
decisions dating back to 1976.” 19-ORD-197; 06-ORD-128. Here, KSP asserts that the
withheld portions of the case file contain “information and records obtained from the
NCIC database.” Accordingly, KSP did not violate the Act when it withheld a portion
of case file under KRS 17.150(4).
Regarding the Appellant’s request that KSP identify two sets of numbers from
a record it had previously provided the Appellant, KSP maintains that the Act does
not require it to provide information. KSP is correct. The Appellant identified two
sets of numbers and asked, “What are they?” and whether they represented a case
number. These requests do not describe public records to be inspected, but rather,
seek information. See, e.g., 21-ORD-014 (holding an agency properly denied a requestseeking “the total number” of unemployment claims filed). The Act does not require
public agencies to fulfill requests for information or answer interrogatories. It only
permits public inspection of describable public records. KRS 61.872; Dep’t of Revenue
v. Eifler, 436 S.W.3d 530, 534 (Ky. App. 2013) (“The ORA does not dictate that public
agencies must gather and supply information not regularly kept as part of its
records.”).
Finally, KSP maintains that it “has provided all existing, responsive, and
nonexempt records pertaining” to the specific individual’s case file. Once a public
agency states affirmatively that a record does not exist, the burden shifts to the
requester to present a prima facie case that the requested record does or should
exist. See Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d 333, 341 (Ky.
2005). If the requester makes a prima facie case that the records do or should exist,
then the public agency “may also be called upon to prove that its search was
adequate.” City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 848 n.3 (Ky.
2013) (citing Bowling, 172 S.W.3d at 341). Here, the Appellant has not made a prima
facie case that KSP possesses additional nonexempt materials in the specific
individual’s case file. Accordingly, KSP did not violate the Act when it did not provide
them.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ Zachary M. Zimmerer
Zachary M. Zimmerer
Assistant Attorney General#185
Distributed to:
Makayla Triplett
Samantha A. Bevins
Stephanie Dawson
Abbey Hub
Mitchel S. Hazelett