NOT TO BE PUBLISHED

95-ORD-21

February 21, 1995

In re: Sharon Wright/Owensboro Police Department

OPEN RECORDS DECISION

This appeal originated in a request to inspect public records submitted by Ms. Sharon Wright, a reporter for the Henderson Gleaner, to the Owensboro Police Department. On November 16, 1994, Ms. Wright requested access to a missing persons report prepared by the Department following the disappearance of a juvenile who apparently ran away from an Owensboro group home and was subsequently struck by a car and killed.

On behalf of the Owensboro Police Department, Captain B. Steven Kimble responded to Ms. Wright's request. Relying on KRS 610.320, he denied the request, advising Ms. Wright that disclosure of the record was "prohibited by state or federal law[.]" Captain Kimble did not elaborate.

In her letter of appeal to this office, Ms. Wright challenges the Department's reliance on KRS 610.320, noting that the clear intent of this provision, to protect the juvenile offender and his prospect for rehabilitation, is not subserved when the juvenile is deceased. She urges the Attorney General to issue a decision consistent with this view.

The question presented in this appeal is whether the Owensboro Police Department violated the Open Records Act in denying Ms. Wright's request. For the reasons set forth below, we conclude that although the Department's response was procedurally deficient, Captain Kimble properly denied her request.

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 action.

The Department's response was deficient to the extent that Captain Kimble failed to include a statement of the specific open records exception authorizing the withholding of the missing persons report, and to briefly explain how the exception applied to the record withheld. Moreover, the response is undated, leaving unanswered the question of whether it was issued in a timely fashion. We urge the Owensboro Police Department to review the cited provision to insure that future responses conform to the Open Records Act.

Nevertheless, based on this office's decision in 95-ORD-7, a copy of which is attached, we conclude that the Department properly relied on KRS 610.320, which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Ms. Wright's request. In that decision, the Attorney General affirmed the Lexington-Fayette Urban County Government's denial of a request for investigative materials relating to the deaths of two juveniles who committed suicide in 1994. At page 3 and 4 of 95-ORD-7, this office observed:

The protection provided by KRS 610.320(3) is not expressly, or by implication, limited to living juveniles. Had the General Assembly intended this provision to be so restricted, it could have written a limitation into the law. In the absence of any such language limiting its application, we are wary of "supply[ing] an omitted provision." Hatchett v. City of Glasgow, Ky., 340 S.W.2d 248, 251 (1961). Simply stated, although the Open Records Act may exhibit a bias in favor of disclosure, the Unified Juvenile Code does not, and it is this law which we are ultimately asked to construe.

We believe that 95-ORD-7 is dispositive of this appeal.

Ms. Wright may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

res/1549

Attachment

Distributed to:

Captain B. Steven Kimble

Owensboro Police Department

109 West Fourth Street

Owensboro, KY 42301

Ms. Sharon Wright

c/o The Gleaner

P.O. Box 4

Henderson, KY 42420