NOT TO BE PUBLISHED
97-ORD-6
January 17, 1997
In re: William T. Donnell/Department of Kentucky State Police
Open Records Decision
This matter comes to the Attorney General on appeal from the actions of the Department of Kentucky State Police in responding to William T. Donnell's December 7, 1996 request:
[T]o know (1) the number of times that Trooper Larry Owens criminally charged drivers in motor vehicle accidents with failure to yield the right of way within the preceding 24 months . . . [and] the number of times that Trooper Larry Owens identified failure to yield the right of way as a contributing factor in any accident he investigated within the previous two years; (2) the number of times that Trooper Mark Applin criminally charged drivers in motor vehicle accidents with failure to yield the right of way within the preceding 24 months . . . [and] the number of times that Trooper Mark Applin identified failure to yield the right of way as a contributing factor in any accident he investigated within the previous two years.
Recognizing that extracting this information would be a burdensome task, Mr. Donnell offered to provide “any and all manpower necessary to review the data.”
On behalf of the department, records custodian Diane H. Smith responded to Mr. Donnell's request on December 9. Noting that he had already received “all available information,” Ms. Smith advised:
To have the entire staff at the Henderson Post manually search some 2,500 accident reports to determine if there is, in fact, the information you seek is entirely too burdensome. We simply do not have the manpower to provide this service. Additionally, we cannot allow your attorneys and/or paralegals to pilfer our files.
Ms. Smith provided Mr. Donnell with a “listing of contributing factors to traffic accidents for both 1994 and 1995,” but explained that these were statewide statistics, not broken down by counties. Reiterating that Mr. Donnell had received all available information, Ms. Smith invoked KRS 61.872(6), authorizing the department to deny his request as unreasonably burdensome. This appeal followed.
In a follow-up letter to this office, Ms. Smith elaborated on the department's position. She stated that Mr. Donnell's December 7 letter was “not considered to be a request for described records, but . . . a request for information.” Despite the fact that agencies are not required to conduct research, the department “attempted to provide Mr. Donnell with the information he needed . . . using the methods we reasonably believed would produce the information he sought.” Although these efforts proved unsuccessful, Ms. Smith indicated that the department would continue to cooperate with Mr. Donnell by honoring a request for specific records.
We are asked to determine if the Department of Kentucky State Police properly relied on KRS 61.872(6) in denying Mr. Donnell's request. For the reasons set forth below, and based upon this office's decision in OAG 89-76, as well as other supporting authorities, we conclude that the department has not adduced clear and convincing evidence that Mr. Donnell's request is unreasonably burdensome, and that he and his staff must be afforded the opportunity to inspect the accident reports maintained at the Henderson Post.
KRS 61.872(6) provides:
If the application places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency, the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
In OAG 89-76, this office addressed a similar issue. There, the requester submitted a request to inspect all automobile accident reports prepared by the Shively Police Department during a four week period, and indicated that he would make future requests on a weekly basis. The department denied the request on various grounds, including KRS 61.872(6), then codified at KRS 61.872(5), and the requester initiated an appeal to this office. We held that the department had not met its burden of proving, by clear and convincing evidence, that the request could properly be denied on this basis.
We begin our analysis with the observation that “uniform police traffic accident reports prepared by law enforcement officers pursuant to KRS 189.635 are not confidential, and are open records under the open records law. OAGs 83-53, 80-210, 76-478.” OAG 89-76, p. 2. [1]
Rejecting each of the other grounds for denial asserted, we concluded that the department had not made a sufficient showing that the request placed an unreasonable burden on it. At page 4 of OAG 89-76, we observed:
The Shively Police Department is not required to review voluminous numbers of reports and make select copies of them for [the requester]. [The requester] may be shown where the reports are filed and review the reports himself. This procedure should not prove to be unreasonably burdensome.
We believe that the reasoning of that opinion can be extended to the present appeal.
OAG 89-76 echoes a line of Attorney General opinions dating back to 1976 when the Open Records Law was enacted. In OAG 76-375, we recognized that if a requester cannot identify the records he desires with sufficient specificity, or wishes to extract information which has not already been compiled, he “may make a fishing expedition through public records on his own time and under the restrictions and safeguards of the public agency. . . .” OAG 76-375, p. 3. We reaffirmed this position five years later when we held that a request to the secretary of Natural Resources and Environmental Protection for broad categories of records from a period of 1976 to 1981 was not unreasonably burdensome. In OAG 81-198, the requester asked that he be allowed “. . . to inspect the . . . documents during the regular office hours of the department. . . .” OAG 81-198, p. 4. The Attorney General concluded that the requester had “not made any demand on [the] agency which is beyond the scope of the Open Records Law.” Id. Finally, in OAG 84-278 the Attorney General held that a request for 10,000 records, although “certainly `voluminous', . . . is not indicative of an `unreasonable burden' on the office[ ]” where the requester stated that she was willing to inspect the records a few at a time. OAG 84-278, p. 2. We believe that these opinions support the conclusion we reach here.
Mr. Donnell states that his firm will provide all manpower necessary to collect and review the records sought. It is his position that this will eliminate the burden of producing the records. We agree. Mr. Donnell is asserting nothing more than his right, under KRS 61.872(3)(a), to inspect public records during the regular office hours of the public agency. As we earlier observed, such a demand is within the scope of the Open Records Law. Accordingly, we find that the department improperly relied on KRS 61.872(6) in denying his request.
In its follow-up letter to the Attorney General, the Department of State Police complained that Mr. Donnell's December 7 letter was a request for information, and thus did not conform to the technical requirements of the Open Records Act. While it is certainly true that public agencies are not required to compile information to satisfy such a request, we believe that agencies are required to make available for inspection, during normal office ours, records that might yield the information sought. See, e.g., OAG 90-19. As we have noted, Mr. Donnell has offered to conduct his own search of the accident reports at the Henderson Post to extract the information he seeks. We do not believe that the department has established a proper basis for denial of inspection of the reports, and that they must be made available for inspection.
In closing, we note that the Department of State Police has not asserted that portions of the reports may be excluded from public inspection by operation of one or more of the exceptions to the Open Records Law. Obviously, the presence of some exempt information in the accident reports does not relieve the department of its obligation to provide all nonexempt information. KRS 61.878(4) provides:
If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.
If the reports which Mr. Donnell requests access to contain both exempt and nonexempt information, the department may delete the exempt information, after stating, in writing, the statutory basis for withholding that information. As we observed at page 3 of OAG 89-76:
[T]he decision to do so rests within the sound discretion of the public agency because the exemptions contained within KRS 61.878(1) are permissive, not mandatory. Therefore, the Shively Police Department may make available all information contained on uniform police traffic accident reports or may expunge that information which is exempt from inspection, but may not deny inspection of the entire report.
Stated alternatively, “The alleged necessity of separating exempt and nonexempt material is not a sufficient reason for denying access to records.” OAG 81-198, p. 4.
The Department of Kentucky State Police should promptly arrange for Mr. Donnell and his staff to inspect the accident reports. Although “[i]nspection of the records [Mr. Donnell] seeks in his most recent request may require days, or perhaps weeks[,] . . . the process must be begun. Unreasonable restrictions upon inspection may not be imposed.” OAG 89-81, p. 4.
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
Attorney General
Amye L. Bensenhaver
Assistant Attorney General
1481
Distributed to:
William T. Donnell
Brown, Todd & Heyburn
3200 Providian Center
Louisville KY 40202-3363
Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort KY 40601
[1] The status of these opinions is somewhat clouded by the controversy surrounding the 1994 amendments to KRS 189.635. Those amendments, which made accident reports confidential except as to parties to the accident, their insurers, their attorneys, and news gathering organizations, were declared unconstitutional in Stephen Amelkin D.C. v Commissioner, Department of State Police, Civil Action No. 3:94 CV-360-A (W.D. Ky. June 4, 1996), appeal docketed, No. 96-5942 (6th Cir. July 2, 1996). The department is currently enjoined from enforcing these amendments, and, pending resolution of the appeal in the Sixth Circuit, the authorities cited remain valid.