TO BE PUBLISHED 

94-ORD-145

December 9, 1994

IN RE: David Kaplan/Louisville Division of Police

OPEN RECORDS DECISION

This matter comes to the Attorney General on appeal from the Louisville Division of Police's denial of Mr. David Kaplan's request to let a member of his law office inspect and write down information listed on accident reports without being charged any fee for copying the information, which he has stated will be later used for "commercial purposes" as defined by the Open Records Law. KRS 61.870(4).

On behalf of the Louisville Division of Police, Mr. Paul V. Guagliardo, Senior Attorney, Department of Law, City of Louisville, denied Mr. Kaplan's request. Mr. Guagliardo's response, in summary, set forth the following facts in support of his denial:

3. The Louisville Division of Police is required by KRS 189.635 to file accident reports with the Department of State Police. The accident reports are completed on State Police forms;

4. The Department of State Police is the "official custodian" of the accident reports;

5. The Division of Police serves as a conduit to transmit the accident report forms to the State Police. The Division is the custodian of its own agency copy;

6. Pursuant to KRS 189.635, all accident reports are confidential;

7. Pursuant to KRS 61.878(1)(a), (k) and (l), all or portions of each accident report would be exempt from public disclosure.

In addition to the facts set forth above, Mr. Guagliardo, in his agency response, states that an August 2, 1994, judgment in Amelkin v. McClure, U.S. District Court in Louisville, declared Senate Bill 351 (which amended KRS 189.635) unconstitutional to the extent it denies access to the accident reports sought by attorneys, chiropractors, and other persons. Although the Louisville Division of Police was not enjoined (or mandated) by the action with regard to KRS 189.635, the Division, out of deference to the District Court's finding of partial unconstitutionality of KRS 189.635, decided not to withhold the accident reports from "attorneys, chiropractors and other persons" seeking access to the reports.

Because Mr. Kaplan requested to inspect and use information for commercial purposes, the Division calculated an approximate cost of $5.00 per copy to create, produce, and copy an accident report.

Mr. Kaplan requested that he or a member of his staff be permitted simply to look at the report and make notes from the accident reports without being charged any fee.

The Division of Police denied this request, stating that since the information was to be used for commercial purposes, Mr. Kaplan would be charged $5.00 per accident report to view the records. There would be no additional charge to obtain a photocopy of any accident report he had inspected.

The first issue presented in this appeal is whether the Louisville Division of Police violated the Open Records Act by not allowing Mr. Kaplan or a member of his law firm to inspect and write down information listed on the accident reports to be used for commercial purposes without being charged a fee.

Because of legislation passed by the 1994 General Assembly, an additional issue is raised which must be addressed by this decision. That issue is whether it was proper for the Louisville Police Division to make available the accident reports for public inspection in light of legislation passed by the 1994 Kentucky General Assembly. We address this second question first.

In 1994, the General Assembly amended KRS 189.635(5) so that it now provides:

All accident reports filed with the Department of State Police in compliance with subsection (4) above shall remain confidential except that the department may disclose the identity of a person involved in an accident when his identity is not otherwise known or when he denies his presence at an accident. All other accident reports required by this section, and the information contained in the reports, shall be confidential and exempt from public disclosure except when produced pursuant to a properly executed subpoena or court order, or except pursuant to subsection (6) of this section. These reports shall be made available only to the parties to the accident, the parents or guardians of a minor who is party to the accident, and the insurers of any party who is the subject of the report, or to the attorneys of the parties.

(Emphasized language added by 1994 Act.)

Under KRS 189.635(5), the accident reports are confidential and exempt from public disclosure except under limited circumstances set out therein. Mr. Kaplan does not claim he falls under these limited circumstances.

KRS 61.878(1)(l) provides in pertinent part:

(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction . . .

(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.

This office has previously held that the custodian of the records of a public agency may allow inspection of all records in his custody regardless of whether the records may be exempt by their nature under the provisions of KRS 61.878 unless the records come under the exemptions provided for by KRS 61.878(k) and (l). Those exemptions are mandatory and exclude from public inspection public records or information the disclosure of which is prohibited by federal law or regulation or by enactment of the General Assembly. OAG 79-275; OAG 91-132.

Accordingly, the Louisville Division of Police's action in making the accident reports available for public inspection was improper as such records are confidential and the disclosure of the records or information contained therein is clearly prohibited by KRS 61.878(1)(l) and KRS 189.635(5).

The fact that the U.S. District Court has declared a portion of KRS 189.635 unconstitutional and that the case is currently before the U.S. Court of Appeals for the Sixth Circuit does not alter this conclusion. Until such a holding is final and it is shown that such holding is controlling on the facts presented herein, there is a presumption that the statute is constitutional.

The other issue on this appeal is whether the Division of Police violated the Open Records Act by not allowing Mr. Kaplan to inspect and hand-copy information in the accident reports, to be used for commercial purposes, without paying a fee.

The 1994 General Assembly amended the Open Records Act by allowing public agencies to prescribe a fee for making copies of nonexempt public records which are requested for

commercial purposes. KRS 61.874(4). The fee may be based on one or both of the following as set forth in KRS 61.874(4)(c):

1. Cost to the public agency of media, mechanical processing, and staff required to produce a copy of the public record or records;

2. Cost to the public agency of the creation, purchase, or other acquisition of public records.

Thus, it is clear the General Assembly intended that public agencies assess a reasonable fee for copying public records to be used for commercial purposes.

However, KRS 61.874(1) specifically provides that "upon inspection, the applicant shall have the right to make abstracts and memoranda thereof." The Open Records Act does not address the circumstance of whether a fee may be charged for inspection and the writing down of information contained in the public record to be used for a commercial purpose. Unless the public agency can demonstrate some actual cost to the agency associated with allowing an individual to exercise his right to inspect and make an abstract of a public record, for commercial purposes, no fee can be charged. Thus, under the facts presented, the Division of Police could not charge a fee.

Mr. Kaplan and the Louisville Division of 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

James M. Ringo

Assistant Attorney General

res/1142

Distributed to:

David Kaplan

Attorney at Law

550 South Fifth Street

Louisville, KY 40202

Paul V. Guagliardo

Senior Attorney

City of Louisville, Department of Law

Room 200, City Hall

Louisville, KY 40202-2771