NOT TO BE PUBLISHED
February 16, 1993
IN RE: Mike Dean/Kentucky State Police
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Kentucky State Police's response to an open records request. On December 16, 1992, Mr. Mike Dean, a trial commissioner in Laurel County, requested that the State Police provide him with a copy of its Policy and Procedures Manual. His request was denied on December 18, 1992, by Ms. Diane H. Smith, Official Custodian of Records for the State Police. Relying on KRS 61.878(1)(i), she maintained that the Manual "consists of inter-agency documents setting forth policies and recommendations of a sensitive nature which may imperil personal and public security." In support of her position, she cited OAG 79-546, OAG 83-337, OAG 86-38, and OAG 92-112. Ms. Smith indicated that certain portions of the Manual might be available to Mr. Dean in the performance of his duties as trial commissioner.
In his letter of appeal to this Office, Mr. Dean argues that the Manual "does not appear to fall within any statutory exception as set forth in KRS 61.878." He notes that since his request was made in his capacity as a trial commissioner, Ms. Smith's denial of his request "is violative of KRS 61.878(5), in that it interferes with a legitimate governmental need and function."
In response to this Office's request for additional information, Ms. Smith advised that the Kentucky State Police Policy and Procedure Manual:
is an intra-agency document setting forth opinions and policies formulated for the
guidance of officers. It is a sensitive document in that it sets forth policies and recommendations affecting the security of officers and citizens. Although expressed opinions and policies may change frequently, subversive use of the manual would jeopardize officers and citizens and place both in peril.
She reiterated that the State Police have honored requests for nonexempt portions of the manual in the past, "but due to the interactive nature of the manual, this is not possible in response to all requests." Ms. Smith provided this Office with a copy of the Manual to facilitate our review.
We are asked to determine if the Kentucky State Police properly relied on KRS 61.878(1)(i) in denying Mr. Dean's request. For the reasons set forth below, we conclude that their actions were entirely consistent with the Open Records Act.
As noted by Ms. Smith in her December 18 letter of denial, this Office has consistently recognized that a police department's operations manual is an intra-agency document which contains policies and recommendations affecting the safety and security of police officers as well as the public, and is therefore exempt from public inspection pursuant to KRS 61.878(1)(i).
In contrast, we have noted:
A public agency whose function does not involve the peril which goes with, [e.g.,] a detention center operation may have a policy of making its procedures manual available to the public when it believes it is in the public interest to do so.
Thus, in OAG 92-112 we held that a Commonwealth Attorney improperly denied a request for an office procedure manual, reasoning that release of the manual would not imperil personal and public security.
In response to telephone inquiries, Captain Larry Fentress, Legal Counsel to the State Police, explained that
because the Policy and Procedures Manual contains information which could be misused if it fell into the wrong hands, thereby prejudicing prospective police action, the agency has adopted a policy of denying requests for the Manual in its entirety. He noted that the policies set forth in the Manual are subject to almost daily revision, and that if the Manual were widely disseminated, it would undoubtedly generate confusion. He confirmed that the State Police have released specifically identified sections of the Manual to individuals in the past, if the requested sections did not implicate security concerns. Captain Fentress expressed his willingness to provide Mr. Dean with a copy of the Manual's Table of Contents to enable him to identify the desired sections. If disclosure of those sections does not pose a threat to police officers or the public generally, they will be released to him.
It is the opinion of this Office that the Kentucky State Police Policy and Procedures Manual falls squarely within the parameters of KRS 61.878(1)(i) in that it is an intra- agency document setting forth policies affecting the security of police officers and the public. Having reviewed the document, we concur with Captain Fentress that certain portions do not implicate security concerns, and may properly be released.
We are not persuaded that Mr. Dean is entitled to inspect the entire Manual by virtue of the fact that he is a trial commissioner. We acknowledge that KRS 61.878(5) encourages the exchange of public records between public agencies when the exchange is serving a legitimate governmental need or is necessary in the performance of a legitimate government function. However, Mr. Dean has not demonstrated that he needs the entire Manual to discharge his duties as a trial commissioner. Indeed, he has articulated no "governmental need" which might be served by release of the document to him.1 We therefore do not find this provision to
1As the Kentucky Court of Appeals noted in Board of Education of Fayette County v. Lexington-Fayette Urban County Human Rights Commission, Ky. App., 625 S.W.2d 109, 111 (1981):
[N]othing contained [in KRS 61.878(5)] entitles one governmental agency to demand from another information which does not serve a governmental need. In other words, there is no unqualified right for one entity to examine the [records] of another.
be controlling. If he wishes to pursue this matter, Mr. Dean should identify specific portions of the Manual which he wishes to inspect.
Mr. Dean and the Kentucky State Police may challenge this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
Ms. Diane Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Hon. Mike Dean
P. O. Box 5170
333A North Main Street
London, Kentucky 40745