NOT TO BE PUBLISHED
June 13, 1997
In re: Scott Kimble/London City Police Department
Open Records Decision
This matter comes to the Attorney General on appeal from the
response of the London City Police Department to Mr. Scott
Kimble's open records request, dated April 15, 1997, to inspect
the following records of the Department:
1. The Radar Unit's calibration and maintenance records.
2. Officer Van Hook's radar training certification.
3. The tuning forks used to calibrate the radar unit and their
4. The actual unit that was used.
5. This agency's FCC license.
6. List of models, makes and serial numbers of all radar units
being used by this agency.
By letter dated April 17, 1997, Larry G. Bryson, Esq., London
City Attorney, responded to Mr. Kimble's request, stating:
I have spoken with Chief Hollon and he informs me that the two
of you met yesterday and that you had decided to pursue this
information through discovery in Laurel District Court during the
pendency of the case regarding your traffic citation. Upon a
Discovery Order of the Laurel District Court, the London City
Police Department will, of course, provide whatever information
If any of the above is incorrect regarding the status of your
open records request, please inform me of that fact.
By letter, dated April 22, 1997, Mr. Kimble responded to Mr.
Bryson, informing him that there was no agreement with Chief
Hollon that he would pursue the information requested through the
discovery procedure rather than through an open records request.
In his May 14, 1997 letter of appeal, Mr. Kimble indicated
that, as of that date, he had not received the information
requested nor a subsequent response from the city police
On May 16, 1997, we sent a "Notification of Receipt of
Open Records Appeal" to the City and enclosed a copy of Mr.
Kimble's letter of appeal. As authorized by KRS 61.880(2) and 40
KAR 1:030, Section 2, Mr. Bryson provided this office with a
response on behalf of the London City Police Department relative
to the issues raised in the appeal.
In his response, Mr. Bryson explained that the factual setting
surrounding this open records appeal related to Mr. Kimble's
traffic stop, the resultant criminal charge, and the pending
trial of that charge. He stated that it was the Department's
position that the information requested was not subject to the
Open Records Act because the information that Mr. Kimble seeks is
available through discovery in the criminal proceeding. He argues
that the Act should not be used as a substitute for discovery.
In addition, the Department argues that the information Mr.
Kimble requests is not subject to the Open Records Act because it
is part of the police department's investigative files and is
exempt from disclosure while his case is pending and until the
appeal process is finalized.
We are asked to determine whether the Department's actions
were consistent with the Open Records Act. For the reasons which
follow, we conclude that the actions of the Department were
consistent in part and inconsistent in part with the Act.
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 agency action.
In Edmondson v Alig, Ky. App., 926 S.W.2d 856, 858
(1996), the Kentucky Court of Appeals observed:
The language of the statute directing agency action is exact.
It requires the custodian of records to provide particular and
detailed information in response to a request for documents.
The failure of the Department to provide Mr. Kimble with a
written response to his request after learning that
there was no agreement to utilize discovery rather than the Open
Records Act, constitutes a procedural violation of the Act.
Moreover, the Department's response to the letter of appeal is
also procedurally deficient in that it does not include a
statement of the specific statutory exceptions upon which it
relied for withholding the requested records and a brief
explanation of how the exceptions applied to the records
Turning to the substantive issues, we address first the
Department's position that the information requested was not
subject to the Open Records Act because it could be obtained
through the discovery process in the pending criminal proceeding.
Pursuant to KRS 61.880(2), the Attorney General is charged
with the duty of reviewing denial of requests to inspect public
records to determine if the agencies which issued the denials
acted consistent with the provisions of the Open Records Act. It
is not this office's duty to rule on whether those requested
records are discoverable in a pending criminal action. OAG
The presence of litigation does not operate to prevent
inspection of public records, since separate statutory grounds
for inspection have been provided by the General Assembly. In OAG
89-65, we observed:
Inspection of public records held by public agencies under
Open Records provisions is provided for by statute, without
regard to the presence of litigation. There is no indication in
the Open Records provisions that application of the rules therein
are suspended in the presence of litigation. Requests under Open
Records provisions, to inspect records held by public agencies,
are founded upon a statutory basis independent of the rules of
discovery. Public agencies must respond to requests made under
the Open Records provisions in accordance with KRS 61.880.
However, in making this observation that the Open Records Act
is not suspended in the presence of litigation, we noted:
We do not, in making such observation, suggest that Open
Records provisions should be used by parties to litigation as a
substitute for requests under discovery procedures associated
with civil litigation. To do so tends to circumvent the orderly,
balanced process the rules of discovery attempt to provide.
Further, where records may subsequently be offered as evidence in
court, establishing integrity may be more difficult regarding
records obtained under Open Records provisions, than for those
obtained under discovery.
Id. Thus, this office has recognized the potential pitfalls of
using the Open Records Act as a discovery tool.
Nevertheless, as the Attorney General observed in OAG 82-169:
Although there is litigation in the background of the open
records request under review, the requester stands in
relationship to the agency under the Open Records Law as any
other person. The fact that he may have a special interest by
reason of the litigation provides no reason to grant or deny his
request to inspect the record.
Thus, we conclude the Department improperly denied Mr.
Kimble's request on the basis that he could obtain the requested
records through the discovery procedure.
The Department's second basis for denial of the records was
that the records are exempt from disclosure because they are part
of the police department's investigative files and are exempt
from disclosure while the case is pending and until the appeal
process is finalized. As noted above, the Department did not cite
the specific statutory exemptions upon which it based it denial.
This office has consistently held that records of police
departments are, in general, subject to inspection unless
specifically exempted by statute. OAG 76-478; OAG 77-102; OAG
79-582; OAG 91-131; 94-ORD-133.
Two relevant exemptions, insofar as they impact on police
records, are KRS 17.150, incorporated into the Open Records Act
by operation of KRS 61.878(1)(l), and KRS 61.878(1)(h).
KRS 61.878(1)(l) provides that "Public records or
information the disclosure of which is prohibited or restricted
or otherwise made confidential by enactment of the general
assembly" are excluded from the application of the Open
Records Act and shall be subject to public inspection only upon
an order of a court of competent jurisdiction.
KRS 17.150(2) provides:
Intelligence and investigative reports maintained by criminal
justice agencies are subject to public inspection if prosecution
is completed or a determination not to prosecute has been made.
However, portions of the records may be withheld from inspection
if the inspection would disclose:
(a) The name or identity of any confidential informant or
information which may lead to the identity of any confidential
(b) Information of a personal nature, the disclosure of which
will not tend to advance a wholesome public interest or a
legitimate private interest;
(c) Information which may endanger the life or physical safety
of law enforcement personnel; or
(d) Information contained in such records to be used in a
prospective law enforcement action.
KRS 61.878(1)(h) authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in
administrative adjudication that were compiled in the process of
detecting and investigating statutory or regulatory violations if
the disclosure of the information would harm the agency by
revealing the identity of informants not otherwise known or by
premature release of information to be used in a prospective law
enforcement action or administrative adjudication. Unless
exempted by other provisions of KRS 61.870 to 61.884, public
records exempted under this provision shall be open after
enforcement action is completed or a decision is made to take no
action. . . . The exemptions provided by this subsection shall
not be used by the custodian of the records to delay or impede
the exercise of rights granted by KRS 61.870 to 61.884.
Local law enforcement agencies are required to make available
for inspection any records they maintain subject to the
exceptions contained in these provisions.
Unless the enforcement action, out of which those records are
generated, has not been concluded, or another of the exceptions
codified in KRS 17.150(2) or KRS 61.878(1)(h) applies to the
records, the local police department must make them available for
inspection. OAG 91-131.
Police records exempt under KRS 17.150(2) would be those which relate specifically to an ongoing investigation or pending case, or which otherwise fall within
one of the exceptions set out in KRS 17.150(2) (a)-(d).
In order to successfully raise KRS 61.878(1)(h), a public
agency must satisfy a three-part test. The agency must first
establish that it is a law enforcement agency or an agency
involved in administrative adjudication. It must next establish
that the requested records were compiled in the process of
detecting and investigating statutory or regulatory violations.
Finally, the public agency must demonstrate that disclosure of
the information would harm it by revealing the identity of
informants not otherwise known or by premature release of
information to be used in a prospective law enforcement action.
Unlike any of the other exceptions to public inspection, KRS
61.878(1)(h) specifically provides that the exception "shall
not be used by the custodian of records to delay or impede the
exercise of rights granted by KRS 61.870 to 61.884." The
inclusion of this language imports a legislative resolve that the
exception be invoked judiciously, and only when each of these
tests has been met.
Thus, a denial of a request for public records by a law
enforcement agency, under KRS 61.878(1)(h), must be sustained by
proof that: (1) the records in dispute were "records
compiled in the course of detecting and investigating statutory
violations" (in OAG 89-11, we stated this phrase means those
records "actively, specifically, intentionally, and directly
compiled, as an integral part of a specific detection or
investigative process") and (2) the disclosure of the
records would harm the agency by either revealing the identity of
an unknown informant or by the premature release of information
to be used in the law enforcement action.
As noted above, local law enforcement agencies are required to
make available for public inspection, subject to applicable
statutory exceptions, any records they maintain or are compiled
incident to or occurring in the agency's daily operation which
reflect how the law enforcement agency is performing its public
function. OAG 91-131; 77-102. This would include those records
which reflect the general operation or functioning of the police
department, as opposed to records which are part of an ongoing
investigation or case and are exempt from disclosure under KRS
17.150(2) or KRS 61.878(1)(h).
Finally, this office has repeatedly recognized that requests for information, as distinguished from records, are outside the scope of the open records provisions. 96-ORD-12. Our position is premised on the notion that open records provisions address only inspections of records and do not require public agencies or officials to provide or compile specific information to conform to the parameters of a request. OAG 89-77.
Moreover, a public agency is not obligated to compile a list
or create a record, if one does not already exist, to satisfy an
open records request. 96-ORD-251.
In conclusion, denial of an open records request must be
articulated in terms of the requirements of the statute. The
agency thus has the burden of justifying the withholding of
records by reference to the appropriate exception, and by briefly
explaining how it applies to the records withheld. KRS 61.880(1).
It is the decision of this office that the Department failed to meet its burden of establishing that any of the requested documents fall within the exceptions for disclosure. Accordingly, the requested records should be made available for Mr. Kimble's inspection. The requests for the tuning forks and the actual radar unit used are requests for either objects or information, not records, and, thus, do not come within the purview of the Open Records Act.
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
James M. Ringo
Assistant Attorney General
Copies of this decision
have been distributed to:
790 Parker Road, #4
London KY 40741
Larry G. Bryson
Attorney at Law
Bledsoe and Bryson
408 North Main Street, Ste. 2
London KY 40741