NOT TO BE PUBLISHED

95-ORD-113

July 28, 1995

In re: Earl Rogers III/Kentucky State Police

OPEN RECORDS DECISION

This appeal originated in the submission of a request to inspect a public record by Earl Rogers III to the Kentucky State Police on March 1, 1995. That record is identified as the Kentucky State Police Policy and Procedure Manual. On behalf of the Kentucky State Police, Ms. Diane H. Smith, Official Custodian of Records, denied Mr. Rogers's request on March 7, advising him that "[t]he manual is an intra-agency document setting forth policies affecting the security of police officers and the public and is exempt from release pursuant to KRS 61.878(j) [sic]. (93-ORD-18)." Mr. Rogers asks that we review the Kentucky State Police's denial of his request.

The question presented in this appeal is whether the Kentucky State Police properly relied on KRS 61.878(1)(j) in denying Mr. Rogers's request. For the reasons set forth below, we conclude that although the State Police argued, in good faith, that the disputed record is exempt pursuant to KRS 61.878(1)(j), the State Police erred in adopting a policy of blanket nondisclosure relative to the Policy and Procedure Manual. Pursuant to KRS 61.878(4), the State Police are obligated to separate the excepted material from the nonexcepted material contained in the manual, and make the nonexcepted material available for inspection. To the extent that 93-ORD-18, and the opinions cited therein, are inconsistent with this decision, they are modified accordingly.

In an early open records opinion, this office recognized:

[The] policy and procedure manuals and other intra-office memoranda of a detention facility are exempt from the requirement of public inspection by KRS 61.878(1)(h) [now codified as KRS 61.878(1)(j)].

Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.

A requester's reason for wanting to inspect certain public records is generally not a factor to be considered under the Open Records Law. Although the sensitive nature of the procedure manual of a detention center is easily recognized, there is no statute which expressly exempts records of such a nature. However, this office has consistently recognized that intra-office communications are exempt from mandatory disclosure by KRS 61.878(1)[(j)]. A public agency whose function does not involve the peril which goes with a detention center operation may have a policy of making its procedure manuals available to the public when it believes it is in the public interest to do so. On the other hand, we believe that a detention center, jail or prison is fully authorized to forbid disclosure of documents which set forth procedure involving the security of the facility. General business records, however, do not come under this exemption.

OAG 79-546, p. 3. In subsequent opinions, we extended the reasoning of OAG 79-546 to the policy and procedures manual of a state correctional facility (OAG 83-337), and the operations manual of a police department (OAG 86-38). At page 4 of OAG 86-38, we reaffirmed the principles articulated in OAG 79-546, reasoning:

The operations manual of a police depart- ment, like the operations manual of a jail or a state correctional facility, . . . involves people in potentially perilous

situations who are attempting to protect themselves, the public and the entities they serve. Elements such as personal and public security and administrative order are involved.

We noted, however, that these considerations "while critical to a police department or a detention facility, are not nearly so important to the proper functioning of most other governmental agencies." OAG 86-38, p. 4.

Guided by this observation, in OAG 91-112 we declined to extend the reasoning of OAG 79-546 to the office procedures manual of a Commonwealth's Attorney's Office. Referencing that opinion, we observed:

[T]his office has previously held that an operations manual of a police department or jail may be exempt, pursuant to KRS 61.878(1)[(j)], because they are inter-agency documents setting forth policies and recommendations. [Citations omitted.] In those opinions, we also acknowledged that the operations manuals for most other governmental agencies are not sensitive documents the release of which might imperil personal and public security and administrative order.

OAG 92-112, pp. 6, 7. Noting that an agency whose function does not involve peril may have a policy of disclosure relative to its policy and procedures manual, we concluded that the Commonwealth's Attorney's Office improperly withheld its office procedure manual.

In 93-ORD-18, we addressed the propriety of a State Police denial of a request to inspect its Policy and Procedure Manual. The State Police acknowledged that some sections of the Policy and Procedure Manual did not implicate security concerns, and had already been released. Although we ultimately upheld the denial, declaring that the Manual falls within the parameters of KRS 61.878(1)(j) as an intra-agency document setting forth policies affecting the security of police officers and the public, we noted that those sections whose disclosure did not pose a threat to the police or the public should be released. The State Police agreed to provide the requester with a copy of the Manual's Table of Contents to enable him to identify those sections which he wished to inspect, and also agreed to release all nonexempt sections.

Carrying those principles to their natural conclusion, in 94-ORD-114 we held that the State Police violated the Open Records Act in denying a request for a copy of "the written policy and procedures for complying with the provisions of KRS 403.715 to 403.785 established by the Kentucky State Police pursuant to KRS 403.785(4)." We distinguished OAGs 79-546 and 86-38, commenting:

While the operations manual of an enforcement agency, and discreet portions thereof, are in general exempt pursuant to KRS 61.878(1)[(j)] because they are intra-agency documents setting forth policies and recommendations of a sensitive nature, those portions of the state police manual implicated by . . . [this] request do not appear to contain policies and recommendations of a sensitive nature which may imperil personal and public security.

94-ORD-114, p. 3. Our review of the relevant portions of the Manual disclosed that they contained a recitation of the law on domestic violence and abuse found in Chapter 403 of the Kentucky Revised Statutes, procedures for dealing with domestic violence situations, and reporting requirements. We concluded that the law enforcement policies relating to domestic violence and abuse did not implicate personal and public security and that the denial of the request for these records was not supported by the provisions of KRS 61.878(1)(j). While we recognize that the policies relative to domestic violence reflected in the Manual are subject to change, and that such changes could conceivably implicate personal and public security, at the time 94-ORD-114 was issued, that portion of the Manual did not implicate such concerns.

Based on the foregoing, and in light of the clear directive found at KRS 61.878(4), we hold that the policy of blanket nondisclosure which the State Police have adopted relative to the Policy and Procedure Manual violates the Open Records Act. KRS 61.878(4) provides:

If any public record contains material which is not excepted under [KRS 61.878(1)(a)-(l)], the public agency shall separate the excepted and make the nonexcepted material available for examination.

Thus, all public agencies, including the Kentucky State Police, have an affirmative duty to separate exempt material which is commingled with nonexempt material in a public record, and make the nonexempt material available for inspection. An obvious corollary of this proposition is that no request to inspect or copy a public record can be denied on the grounds that exempt material is commingled with nonexempt material. In our view, the public agency has the burden to identify and redact exempt material, and cannot shift the burden to the requester by requiring him to identify the nonexempt portions of the Manual which he wishes to inspect and copy.

It is important to note that the situation out of which this appeal arose is distinguishable from a situation in which a requester makes a request for all documents on a given topic, for example, a request for all documents in a personnel file. Here, Mr. Rogers requested a specific document, albeit a lengthy one, to wit, the Kentucky State Police Policy and Procedure Manual. We continue to ascribe to the view that it is incumbent on the requester to identify with reasonable particularity, the document or documents which he wishes to inspect, and that where he fails to do so, the public agency is under no obligation to honor the request. See, e.g., OAG 76-375. Under the facts of the present appeal, the State Police must evaluate a single document to determine which sections implicate security concerns and which do not, and make the latter sections available for inspection. This review, although perhaps laborious, should serve the State Police in responding to future requests for the same public record. We therefore conclude that although the State Police argued in good faith that the Policy and Procedure Manual is exempted from disclosure pursuant to KRS 61.878(1)(j) and prior opinions of this office, its policy of blanket nondisclosure is inconsistent with both the spirit and the letter of the Open Records Act.

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. 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 proceedings.

CHRIS GORMAN

ATTORNEY GENERAL

AMYE B. MAJORS

ASSISTANT ATTORNEY GENERAL

res/357

Distributed to:

Ms. Diane H. Smith

Official Custodian of the Records

Kentucky State Police

919 Versailles Road

Frankfort, KY 40601

Hon. Earl Rogers III

Attorney at Law

154 Flemingsburg Road

Morehead, KY 40351