NOT TO BE PUBLISHED 

93-ORD-41

April 8, 1993

IN RE: Jessica Shuler/Kentucky State Police

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the actions of the Kentucky State Police relative to Ms. Jessica Shuler's January 22, and February 16, 1993, requests to inspect certain records in the custody of the State Police. On January 22, Ms. Shuler requested access to:

Ms. Shuler is employed by 24 Hour Mechanic, and her request was made under the Kentucky Open Records Act.

On behalf of the Kentucky State Police, Ms. Diane H. Smith, Official Custodian of Records, partially denied Ms. Shuler's request in a letter dated February 1, 1993. Although she advised Ms. Shuler that she would be permitted to inspect the applications of all wrecker services currently on the rotating wrecker log used by the State Police in Madison County, she denied the remainder of her request. Relying on KRS 61.872(5), Ms. Smith explained that compliance with Ms. Shuler's request "would require a thorough search of memorandum files, correspondence files, criminal investigative files, records of citations issued, radio logs, and automotive records." She estimated that at least 10,000 documents would have to be reviewed prior to their release in order to satisfy Ms. Shuler's request.

Ms. Smith offered the following illustration:

Ms. Smith therefore declined to honor the remainder of Ms. Shuler's request.

Ms. Shuler resubmitted her request on February 16, 1993, in an apparent attempt to narrow its scope. On that date she requested access to:

In support of her position, Ms. Shuler cited a number of opinions of the Attorney General which she believes mandate disclosure of the records requested.

In a letter dated February 18, 1993, Ms. Smith again denied most of Ms. Shuler's request. As before, Ms. Smith

granted that portion of Ms. Shuler's request relating to "applications" of individuals, partnerships, or corporations appearing on the wrecker rotation list for KSP Post #7. The remainder of her response can be summarized as follows:

We are asked to determine if the Kentucky State Police properly relied on KRS 61.878(1)(g), and (h), and KRS 61.872(5) in partially denying Ms. Shuler's requests. For the reasons set forth below, we conclude that KSP's actions were partially consistent, and partially inconsistent with the Open Records Act. We address these issues in the order in which they appear above.

Ms. Shuler requests access to dispatch records "pertaining to the wrecker rotation list of KSP Post #7" from January 1, 1990, to the present. At page 3 of OAG 89-20, this Office recognized that:

Such records, we noted, "are of an identified, limited, class, typically maintained by month or year, so that they may be made rather readily available as by providing appropriate binders or boxes." OAG 89-20, p. 2. In that opinion, we held that such logs have never been granted blanket exclusion from inspection. Instead, we have generally upheld access to police dispatch logs. OAG 82-70; OAG 89-20; OAG 89-68.

We have, however, acknowledged that particular entries upon a police dispatch log might properly be excluded from inspection pursuant to KRS 61.878(1)(g). Exclusion of given notations on a log must be "articulated in terms of the requirements of the statute." OAG 89-20, p. 3. Ms. Smith failed to articulate in terms of KRS 61.878(1)(g) how portions of the dispatch log might be properly excludable, and therefore did not satisfy the burden of proof imposed on KSP by KRS 61.880(2) and KRS 61.882(3).

Moreover, this Office has consistently recognized that redaction of otherwise exempt information on a public record is not required, and that therefore an agency cannot base its refusal to permit inspection solely on the grounds that the agency has elected to adopt a policy of separating exempt and nonexempt material. OAG 81-198; OAG 89-76; OAG 90-112. Since the exemptions to the requirement of mandatory disclosure of

public records are not mandatory, but are instead permissive, "the alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records." OAG 81-198, pp. 3-4.

While we do not believe that KSP has any obligation to separate portions of the dispatch log containing references to the wrecker rotation list of Post #7, we find that Ms. Smith improperly denied the request for the dispatch log in its entirety. KSP should promptly arrange for Ms. Shuler to inspect the log. She may expend her own time in locating the desired information.

Ms. Shuler next requests access to incident reports pertaining to the wrecker rotation list for KSP Post #7. Ms. Smith responded that no records exist which satisfy this portion of her request, noting that the term may be used to refer to memoranda which describe unusual incidents, although "there is no central filing mechanism by which such records can be retrieved." To the extent that the term "incident report" relates to existing memoranda which describe unusual incidents, presumably involving wreckers at Post #7, we do not believe that Ms. Smith has offered adequate grounds for denial.

An agency's failure to maintain a central filing system by which records may be easily accessed does not constitute a recognized exception to the Open Records Act. Ms. Smith acknowledges that there is a document referred to as an "incident report," but does not cite an exception codified at KRS 61.878(1)(a) through (k) authorizing nondisclosure of the document.

Additionally, if the term "incident report" refers to the document which it is commonly understood to refer to, i.e., police blotters, we believe that there is no exception which could properly be invoked to authorize nondisclosure. In OAG 77-102 and 83-366, this Office held that a police incident report, also known as a police blotter, is not exempt from public inspection unless an enforcement action is pending. If an action is pending, such records may be exempt pursuant to KRS 61.878(1)(g) and KRS 17.150, but the burden is, again, on the custodian to justify the denial with specificity.

Accordingly, we find that KSP improperly denied that portion of Ms. Shuler's request relating to "incident reports," and should promptly arrange for inspection.

The third item identified in Ms. Shuler's request is complaints pertaining to the wrecker rotation list for KSP Post #7. Relying on KRS 61.878(1)(h), Ms. Smith denied this portion of her request, arguing that such complaints consist of preliminary notes and correspondence with private individuals. We reject this argument with respect to complaints which have been finally resolved, and are therefore no longer preliminary.

Kentucky's courts and this Office have consistently recognized that complaints which spawn an investigation may not be excluded from public inspection once final action has been taken in the matter, regardless of the form in which they appear. City of Louisville v. Courier-Journal and Louisville Times Company, Ky. App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, Ky. App., 663 S.W.2d 953 (1984); OAG 86-46; OAG 87-32; OAG 87-64; OAG 89-74. These opinions are premised on the notion that since final actions stem from complaints, they must be deemed incorporated as part of the final determination. This rule of law is not altered by the fact that the complaints originate in a telephone call and "preliminary note," or a letter from a private individual. These too are deemed incorporated into final action once it is taken. The identity of complainants may, however, be withheld pursuant to KRS 61.878(1)(a), the personal privacy exception. OAG 85-126; OAG 89-74.

KSP is directed to arrange for Ms. Shuler to inspect complaints pertaining to the wrecker rotation list for KSP Post #7, but may, in its discretion, redact the names of the complaining parties.

Turning to the fourth part of the request, we find that Ms. Smith properly advised Ms. Shuler that she would be permitted to review "disciplinary actions," if by this term she means actions by KSP to remove a wrecker service from the rotating wrecker list. Ms. Smith indicated that KSP does not maintain records on "disciplinary actions" against wrecker services other than those she agreed to release. Her response was therefore consistent with the Open Records Act and the principle that an agency cannot provide access to a record which it does not have or which does not exist. OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112. KSP should arrange for Ms. Shuler to inspect records pertaining to removal of a wrecker service from the wrecker list.

With respect to the fifth part of Ms. Shuler's request, we find that Ms. Smith properly denied her access to "any and all records, documents, exhibits, testimony, writings, investigations, or complaints from December 1, 1992, to the present concerning Paul Zweifel or the 24 Hour Mechanic." Ms. Smith relied on KRS 61.878(1)(g), authorizing nondisclosure of records of law enforcement agencies that are compiled in the process of detecting and investigating statutory or regulatory violations if disclosure would harm the agency by revealing the identity of informants or by release of information which might be used in a prospective law enforcement action. She explained that the records requested by Ms. Shuler reveal the identity of informants and contain information which might be used in a prospective enforcement action. Ms. Smith therefore demonstrated that the records relate to a pending case.

This Office has previously held that records of the State Police which relate to an active case are not open to inspection. OAG 83-366; OAG 87-15; OAG 88-27; OAG 91-50. At page 2 of OAG 83-366, we advised:

Upon completion of the prosecution, or after a decision not to prosecute is made, the records will be subject to inspection, unless they contain information which is exempt under another exception to the Open Records Act. KSP is not required to disclose records relating to an ongoing investigation at this time.

Finally, we hold that Ms. Smith failed to sustain by clear and convincing evidence that Ms. Shuler's request for "[a]ny and all records, crusier [sic] repair vouchers, bills, receipts, cancelled checks and/or other records for work, including parts and accessories purchased for the cars of KSP Post #7, including gasoline purchases for these cars from Jan. 1, 1990 to present," places an unreasonable burden on KSP. Clearly, such records are public records within the meaning of KRS 61.870(2) and have been held to constitute nonexempt "open records." OAG 79-27. Although she explained in her February 1, 1993, response that there are approximately 45 official vehicles assigned to the Richmond Post, and that each vehicle generates at least 20 receipts per month for gasoline purchases

and other costs of operation, totalling 900 receipts per month, Ms. Smith acknowledged that the receipts are collected and forwarded to Frankfort where they are filed according to the vehicle to which they relate. The requested records are thus compiled in such a fashion that they can be accessed as soon as KSP determines which vehicles have been assigned to the Post since January 1, 1990.

While we concede that the clerical hours required to compile those documents may be burdensome, we remind KSP of the position taken by this Office in an early open records appeal:

OAG 77-151, p. 3. Hence, at page 2 of OAG 84-278, we held that a request to inspect "10,000 cases [is] certainly 'voluminous,'" but not necessarily unreasonably burdensome. KSP should expeditiously make arrangements for Ms. Shuler to review these records, and advise her of the earliest date, time, and place for inspection.

Ms. Shuler 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.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

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Distributed to:

Ms. Diane H. Smith

Official Custodian of Records

Kentucky State Police

919 Versailles Road

Frankfort, KY 40601

Ms. Jessica Shuler

c/o 24 Hour Mechanic

P. O. Box 5132

Richmond, KY 40476