January 30, 1997

In re: Richard P. Powell/City of Louisville Division of Police

Open Records Decision

This matter comes to the Attorney General on appeal from the City of Louisville Division of Police's response to an open records request. On October 1, 1996, Richard P. Powell, director and publisher of “The Daily Legal,” submitted a request “to obtain copies of all traffic accident reports within your jurisdiction on a weekly basis.” In a letter dated October 4, 1996, Paul V. Guagliardo, senior attorney for the City of Louisville's Department of Law, responded to Mr. Powell's request. He explained that the Open Records Act does not require public agencies to honor requests for records which do not exist on the date of the request. For this reason, Mr. Guagliardo indicated that the Division of Police would not honor Mr. Powell's request to receive accident reports in the future on a weekly basis.

We are asked to determine if the City of Louisville violated provisions of the Open Records Act in responding to Mr. Powell's request. For the reasons set forth below, and upon the authorities cited, we conclude that the City's response was consistent with the Act, and prior open records decisions of this office.

This office has long recognized that “uniform police traffic accident reports prepared by law enforcement officers pursuant to KRS 189.635 are not confidential, and are open records under the open records law. OAGs 83-53, 80-210, 76-478.” OAG 89-76, p. 1. Nevertheless, in a recent decision, we commented:

The status of these opinions is somewhat clouded by the controversy surrounding the 1994 amendments to KRS 189.635. Those

amendments, which made accident reports confidential except as to parties to the accident, their insurers, their attorneys, and news gathering organizations, were declared unconstitutional in Stephen Amelkin D. C. v Commissioner, Department of State Police, Civil Action No. 3:94 CV-360-A (W.D. Ky. June 4, 1996), appeal docketed, No. 96-5942 (6th Cir. July 2, 1996). The department [of State Police] is currently enjoined from enforcing these amendments, and, pending resolution of the appeal in the Sixth Circuit, the authorities cited remain valid.

97-ORD-6, p. 3, footnote 1. The City does not dispute the general proposition that police traffic accident reports are open records under the open records law, but instead focuses on Mr. Powell's failure to request existing records. We believe that the City's concerns are well-founded.

KRS 61.872(2) provides:

Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected.

KRS 61.870(2) defines the term “public record” as:

[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.

Thus, the “right to inspect public records” attaches only after those records have been “prepared, owned, used, in the possession of or retained by a public agency.” No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records. To the extent that Mr. Powell's request is prospective, the City is not obligated to honor it.

These observations find support in a number of past open records decisions. In OAG 81-212, this office upheld an agency's denial of a request for copies of the minutes of any regular or special meting held in the future, observing that “a person does not have the right to request that copies of future documents be sent to him.” OAG 81-212, p. 1 (emphasis added). In a latter opinion, we affirmed an agency's denial of a request for a nonexistent record, reasoning that “[b]ecause the written settlement agreement has yet to be prepared, it is the opinion of the Attorney General that no violation of the Kentucky Open Records Act has yet occurred.” OAG 91-20, p. 2 (emphasis added).

Similarly, this office has recognized that “standing requests” for public records are not proper under the law, and need not be honored. Thus, in OAG 91-78, the Attorney General affirmed the actions of a public agency when it refused “to issue a blanket release of documents to be used by the [agency] in futuro.” OAG 91-78, p. 4. We reaffirmed this position a year later when we stated that the office of Attorney General “has never recognized the validity of a standing request.” OAG 92-30. See also, 95-ORD-43 (holding that a “standing request” for electronically stored records in the custody of the county clerk was procedurally deficient); compare, OAG 90-112, p. 3 (holding that a request for all “automobile accident reports prepared by the Kentucky State Police Department, London Post, . . . for a period of four (4) weeks prior to the date of inspection period,” specifically identified the records sought, and must be honored. (Emphasis added.) This line of authorities clearly supports the view that the Open Records Act regulates access to existing records only.

We concluded our analysis in OAG 90-112 by noting that a public agency may “require a separate application for inspection of specific records each time an applicant desires to inspect public records.” OAG 90-112, p. 6. This position is firmly rooted in KRS 61.872(2), quoted above, and reflects the view that “the procedural requirements of the Open Records Act are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request.” 94-ORD-128, p. 2; 95-ORD-43, p. 3. Accordingly, we find that pursuant to KRS 61.872(2) the City can require Mr. Powell to submit a new application each time he requests copies of records, and that it need only honor his requests for existing records, i.e., records which have been “prepared, owned, used, in the possession of or retained by a public agency.” KRS 61.870(2).

We do not comment on the City's obligation to furnish Mr. Powell with copies of traffic accident reports upon request, except to note that the Open Records Act imposes a heavier burden on applicants who demand copies, as opposed to the right to inspect. KRS 61.872(3)(b) expressly states that public agencies must provide copies to a person whose residence or principal place of business is outside the county in which the public records are located “after he precisely describes the public records which are readily available within the public agency.” (Emphasis added.) In contrast, KRS 61.872(2) provides, with respect to the right to inspect, that the applicant “describ[e] the record to be inspected.” This distinction is rooted in the notion that public agencies and employees “are the servants of the people as stated in the Preamble to the Open Records Act, but they are the servants of all the people and not only of persons who may make extreme and unreasonable demands on their time.” OAG 76-375, p. 4. Thus, while we continue to ascribe to the view that “it is the legislative intent that public employees exercise patience and long-suffering in making public records available for public inspection . . . ,” we believe that an applicant who requests copies of voluminous public records must, at a minimum, satisfy the requirements of KRS 61.872(3)(b) by “precisely describing” the records he seeks, and that those records be “readily available within the public agency.” OAG 77-151, p. 3 (emphasis added). Compare, 97-ORD-6; 97- ORD-8; 97-ORD-12.

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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.

A. B. Chandler III

Attorney General

Amye L. Bensenhaver

Assistant Attorney General


Distributed to:

Richard P. Powell

The Daily Legal

8866 Oak Circle

Tampa FL 33615

Paul V. Guagliardo

Senior Attorney

Department of Law

City of Louisville

Room 200, City Hall

Louisville KY 40202-2771