January 13, 1995

In re: Maria Chalk/City of Ft. Thomas


This appeal originated in a request for public records submitted by Ms. Maria Chalk to the City of Ft. Thomas on June 6, 1994. Ms. Chalk requested a copy of all "police reports prepared in connection with [the June 4, 1994, break-in of her home by Ft. Thomas police officers], as well as a transcript of phone conversations and radio contacts." Ms. Chalk also requested "a full explanation of the activity . . . ."

In a response dated June 22, 1994, Mr. Jeffrey S. Earlywine, City Administrative Officer, denied Ms. Chalk's request. He explained:

All public records and documents are subject to review and inspection except as outlined under KRS 61.878, which states:

(Subsection 1- "The following public records are excluded from the application of KRS 61.870 to 61.887 [sic] and should be subject to inspection only upon order of a court of competent jurisdiction . . ."

Subsection a.- Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of privacy.")

Upon review of the information you have requested and consultation with the City's legal counsel, I must deny your request to produce these documents in accordance with the stated exception.

Mr. Earlywine did not elaborate.

In a subsequent letter, Mr. Earlywine retreated from this position, indicating that "one option to facilitate disclosure of this information would be to remove any and all personal information regarding individuals to eliminate the potential for an unwarranted invasion of personal privacy." Mr. Earlywine furnished Ms. Chalk with a copy of the "Police Dispatch record and related information," but redacted portions of those records "to protect individuals involved in this incident." He offered no further explanation. Mr. Earlywine reaffirmed this view in a letter to Ms. Chalk dated October 28, 1994. He acknowledged the existence of documents containing "internal communications between officers of the Fort Thomas Police Department," and provided Ms. Chalk with copies of these records, but again redacted "[a]ll information of a personal nature . . . in accordance with statutory requirements." Mr. Earlywine assured Ms. Chalk that these records, along with those previously released, "represent all documents possessed by the City of Ft. Thomas regarding this matter."

The question presented in this appeal is whether the City of Ft. Thomas has met its statutory burden of proof in partially denying Ms. Chalk's request. For the reasons set forth below, we conclude that the City failed to sustain its action by proof.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final action.

Ms. Chalk's first request was tendered on June 6, 1994. Mr. Earlywine's response was issued on June 22, 1994. Thus, twelve business days elapsed between the date of the request and the date of the response. The City of Ft. Thomas's failure to respond within three business days constituted a procedural violation of the Act.

Moreover, in redacting portions of the requested records, Mr. Earlywine did little more than cite the ostensibly relevant exception to public inspection. As noted, KRS 61.878(1)(a) exempts from the mandatory disclosure provisions of the Open Records Act:

Public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.

An agency can properly withhold a record under this exception only if it can establish that the public's interest in release of that record is outweighed by the individual's privacy interest. 94-ORD-133, p. 8. The basis for denial must therefore be "articulated in terms of the requirement of the statute." OAG 89-20, p. 3.

It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882(3). Mr. Earlywine did not attempt to explain how disclosure of the requested records would constitute a clearly unwarranted invasion of personal privacy. This is not to say that he could not properly rely on KRS 61.878(1)(a), or another exception to public inspection, to justify his actions, only that he failed to satisfy his statutory burden of proof. We are left with no alternative but to direct the release of unredacted copies of all of the records requested by Ms. Chalk.

In a series of opinions dating back to the enactment of the Open Records Law, this office has recognized that records of law enforcement agencies are, in general, subject to public inspection unless they are specifically exempted by statute. OAG 76-478. In that opinion, we observed:

Police Departments do not have the authority to act privately, confidentially or secretly unless expressly authorized in particular kinds of cases.

OAG 76-478, at p. 2. We subsequently confirmed this position, noting that "[t]he sovereign is a party to police actions and therefore the public has a right to inspect the records of . . . [its] actions." OAG 76-511, at p. 4.

This principle has been refined over time with respect to various categories of records. Although we have recognized that a police department may, on occasion, "feel it necessary to withhold certain items from public inspection in order to protect a police officer or an informant," and that it must, on these occasions, "justify the refusal of inspection with specificity," we have generally ruled that "records of police departments showing complaints received from citizens and other incidences occurring in its daily operation are open to public inspection." OAG 77-102, at p. 2; see also OAG 82-70; OAG 89-20; OAG 89-68; 93-ORD-41. Although the burden on the public agency to justify its denial of the requester's right of inspection may be, and often is, an onerous one, it is nevertheless required to discharge its duty under the statute, particularly where as here prior opinions and case law seem to support disclosure. In view of these general principles, we direct the City of Ft. Thomas to release the records in an unredacted form, and urge the City to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.

The City of Ft. Thomas may challenge this decision by initiating action in the appropriate circuit court. 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 proceedings.






Distributed to:

Mr. Jeffrey S. Earlywine

City Administrative Officer

130 North Ft. Thomas Avenue

Ft. Thomas, KY 41075

Ms. Maria Chalk

315 South Ft. Thomas Avenue

Ft. Thomas, KY 41075