NOT TO BE PUBLISHED
APRIL 18, 1996
In re: Ronald D. Doyle/Kentucky State Police
OPEN RECORDS DECISION
This matter comes to the Attorney General as an appeal by Ronald D. Doyle in connection with his request to the Kentucky State Police for access to a particular document.
In a letter dated October 30, 1995, Mr. Doyle submitted a request, citing the Open Records Act, to the Kentucky State Police, Internal Affairs Section, seeking a copy of a report filed by a Detective McDonald who had interviewed Mr. Doyle and his wife. The interview apparently resulted from prior correspondence by the Doyles to the Kentucky State Police relative to an incident in which they were involved with members of the Kentucky State Police near Shelbiana, Kentucky, in 1994.
Captain Robert Milligan, Commander, Internal Affairs Section, Kentucky State Police, in a letter dated November 8, 1995, advised Mr. Doyle in part as follows:
I have reviewed the contents of your letters dated March 7, 1995 and October 30, 1995, where you expressed concern about procedures used by Kentucky State Police troopers in stopping to talk and assist you on August 14, 1994 near Shelbiana, Kentucky. In order for this agency to conduct an investigation into the activities of one of our officers, there must be an alleged violation of law or agency policy. After careful review of your letters, the incident you described does not give rise to a violation of either of the above. Therefore, your letters are being placed in our correspondence file.
Mr. Doyle's letter of appeal was received by the Attorney General's Office on December 27, 1995.
No matter what other correspondence may have occurred between the Doyles and the Kentucky State Police regarding the 1994 incident, Mr. Doyle's letter to the Kentucky State Police of October 30, 1995, was clearly a request for access to documents under the Open Records Act. Mr. Doyle's letter specifically cited the Open Records Act and he asked for a particular document - a copy of the report prepared by a Detective McDonald relative to the detective's interview with the Doyles. The Kentucky State Police knew or should have known that they were required to respond to the request under the Open Records Act pursuant to the terms and provisions of KRS 61.880(1).
KRS 61.880(1) mandates that a public agency respond to a request within a specified time frame and it also requires that certain procedures be followed if a request is denied. See, for example, 95-ORD-27, copy enclosed, at page five.
While the letter of the State Police, dated November 8, 1995, was purportedly in part a response to Mr. Doyle's letter of October 30, 1995, it never directly addressed the matter of the request for access to the report filed by Detective McDonald which was the primary matter set forth in Mr. Doyle's correspondence. The State Police, in effect, denied Mr. Doyle's request as the material he sought was not made available for inspection.
This office said in 95-ORD-3, copy enclosed, at page four, that the burden of proof in sustaining a denial of a request for access to a public document is on the public agency. The public agency must justify the refusal of inspection with specificity. In addition, in 95-ORD-61, copy enclosed, at page five, this office said in part that although there is no clear standard of proof under the Open Records Act, with one narrow exception not applicable in this situation, it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the public agency. KRS 61.880(2)(c) and KRS 61.882(3).
Thus, it is the decision of the Attorney General that the response of the Kentucky State Police was procedurally deficient and violative of the Open Records Act to the extent that it failed to meet the statutory burden of proof imposed upon a public agency to sustain a denial of the request for access to a public document. The requested document was, therefore, improperly withheld and this office has no alternative but to direct the immediate release of that document to the requesting party.
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 filed in circuit court, but the Attorney General shall not be named as a party in that action or in any subsequent proceeding.
A.B. CHANDLER III
THOMAS R. EMERSON
ASSISTANT ATTORNEY GENERAL
Copies of this decision
have been delivered to:
Ronald D. Doyle
21997 Louisville Road
Park City, Kentucky 42160
Captain Robert Milligan
Commander, Internal Affairs Section
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601