NOT TO BE PUBLISHED
97-ORD-8
January 22, 1997
In re: Northern Kentucky Chiropractic Center, P.S.C./Lexington Fayette
Urban County Government
Open Records Decision
This matter comes to the Attorney General on appeal from the Lexington Fayette Urban County Government's denial of Northern Kentucky Chiropractic Center's November 4, 1996, request to inspect motor vehicle accident reports in the custody of the LFUCG police department “for the purpose of making extracts therefrom.” Specifically, NKC asked that it be allowed to write down information from the reports rather than having copies made. In a response dated November 8, 1996, LFUCG corporate counsel Theresa Holmes denied the request, advising NKC:
At this time, only copies are available for inspection under the agreement with Northern Kentucky Chiropractic. The news media are not given access to original documents. To have access to the original documents would require your client to appear at the Division of Police more often and at the convenience of the record custodian. The original documents are not necessarily filed immediately, and it is only after the custodian is finished using the documents that they have to be made available. KRS 61.872(5). If [NKC] wants access to the copies made for the news media, it will have to pay the commercial rate whether it looks at the copies or has additional copies made.
Ms. Holmes distinguished 94-ORD-145, in which this office held that a public agency could not assess a charge for inspection of public records, arguing that the decision “could only have been addressing a situation where original documents were being inspected.” Moreover, Ms. Holmes noted, because the decision was appealed to the circuit court, it is not final and is therefore not binding precedent. It is from the LFUCG's response that NKC appeals.
In a follow-up letter to this office, LFUCG elaborated on its position. Reasserting the argument that NKC cannot copy information from accident reports without paying commercial fees, Ms. Holmes attempted to clarify the record keeping system which necessitates this approach. She explained:
When an accident report is taken by an officer and approved by the supervisor, the original is sent to the records unit. The records unit verifies the report - often sending it back to the reporting officer for correction - and makes it available to the public. Copies of the reports are made for the news media, which is exempt from the commercial use charges pursuant to KRS 61.870(4)(b)(1). Once the data on each accident sheet is entered into the computer, the original reports are kept at the records counter in order for citizens, insurance companies and others to request copies. The copies remain at the front desk for approximately two weeks, at which time they are filed, by date, in the records file system. There are up to three years of original records on file at any time.
Under current arrangements, representatives of Northern Kentucky Chiropractic are allowed to review the media copies of the reports to determine which reports they want for their purposes. They review these documents twice a week, select the reports they want and pay accordingly. If the representatives of Northern Kentucky Chiropractic are allowed to use copies for a commercial purpose, they should be required to pay for them.
If Northern Kentucky Chiropractic wants access to the original documents to write down selected information without paying the statutorily authorized fees, its representatives will have to wait until the documents are moved from the records counter into the file system. They cannot monopolize the originals at the records counter because the originals are in use. Pursuant to KRS 61.872(5), the custodian may refuse access to documents until they are not longer in use.
In closing, Ms. Holmes noted that if NKC no longer wishes to obtain copies of the accident reports, “other, less expensive, ways of receiving the information desired may exist.” But, she reiterated, NKC should not be allowed to make commercial use of copies of the reports without paying for them.
We are asked to determine if the Lexington Fayette Urban County Government violated provisions of KRS 61.870 to 61.884 in refusing to permit Northern Kentucky Chiropractic to inspect accident reports in the custody of its police department free of charge. Based on the United States District Court's recent opinion 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), we find that the LFUCG cannot properly rely on the 1994 amendments to the Open Records Act in an appeal to this office, in adopting a policy which distinguishes between commercial and noncommercial use of public records. We therefore remand this matter to the LFUCG for a response to NKC's request which is consistent with the District Court's opinion in Amelkin. [1] We also find that any open records policy by which requesters are charged for exercising the right to inspect public records and make abstracts thereof violates provisions of the Act.
In Amelkin, the federal district court for the Western District of Kentucky analyzed the constitutionality of Senate Bill 351, which amended KRS 189.635 to prohibit disclosure of accident reports filed with the Department of State Police except under narrowly defined circumstances, and to certain identified individuals, specifically, insurers and media representatives. The bill was apparently aimed at discouraging direct solicitation of business for pecuniary gain, and had an immediate impact on attorneys and chiropractors who filed suit challenging the amendment. The court concluded that the statute, as amended, is unconstitutional, and, in its judgment, permanently enjoined defendants, including this office, from enforcing “the 1994 amendments to KRS 189.635 and KRS 61.874, et seq., and . . . KRS 438.065.”
To the extent that the Lexington Fayette Urban County Government's records policy incorporates the 1994 amendment to the Open Records Act, which have been declared constitutionally infirm, we cannot approve it. In light of the court's opinion in Amelkin, we believe that the LFUCG cannot assess the requester a higher charge for copying public records, much less inspecting copies of public records, for a commercial purpose. Nor do we believe that the LFUCG can assess the requester any charge for exercising the clearly defined right to inspect public records.
The Lexington Fayette Urban County Government acknowledges its obligation to disclose accident reports. Ms. Holmes indicates that, after processing the reports, the police department places the originals at the records counter “in order for citizens, insurance companies and others to request copies.” The reports remain at the records counter for two weeks, and are then chronologically filed in the department's records file system. The LFUCG appears to be concerned that NKC will “monopolize” the originals at the records counter while they would otherwise be in use. Citing KRS 61.872(5), the LFUCG argues that it can properly deny NKC access to the reports until they are no longer in use, that is to say, until the reports have been moved from the records counter into the file system. We do not agree.
With regard to its right to inspect public records, NKC stands in the same shoes as any other open records requester. KRS 61.872(1) provides that “[a]ll public records shall be open for inspection by any person, except as otherwise provided by KRS 61.870 to 61.884, and suitable facilities shall be made available by each public agency for the exercise of this right.” Subsection (2) of that provision states that “[a]ny person shall have the right to inspect public records.” KRS 61.872(3)(a) and (b) make it clear that the Open Records Act contemplates records access by two means: Onsite inspection during the regular office hours of the agency, or receipt of the records from the agency through the mail. Finally, KRS 61.874(1) provides that “[u]pon inspection, the applicant shall have the right to make abstracts of the public records and memoranda thereof. . . .” Whatever its earlier agreement with the LFUCG might have been relative to records access, NKC now asks that it be allowed to inspect the accident reports in the police department's custody as they become available to the public generally. In so doing, NKC “has not made any demand on [the] agency which is beyond the scope of the Open Records Law.” OAG 81-198, p. 4.
While we concede that our understanding of the circumstances giving rise to this appeal is limited to the written records before us, that record does not support LFUCG's assertion that, if permitted to review the originals of the accident reports at the records counter as does the public generally, NKC will monopolize the reports. Assuming for the sake of argument that such a threat exists, it is clear that the LFUCG may adopt rules and regulations “in conformity with the provisions of KRS 61.870 to 61.884 to provide full access to public records, to protect public records from damage and disorganization, to prevent excessive disruption of its essential functions, to provide assistance and information upon request and to insure efficient and timely action in response to application for inspection. . . .” KRS 61.876(1). Thus, while the LFUCG may take whatever steps are necessary to insure that all applicants are afforded access to the accident reports, “[u]nreasonable restrictions upon inspection may not be imposed.” OAG 89-81, p. 4.
Nor are we persuaded that the LFUCG may properly rely on KRS 61.872(5) to deny NKC the right to inspect the reports until after they have been chronologically filed in the records file system. That statute provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
Once they are placed on the records counter, the “active use” to which the reports are being put is inspection and copying by the public. NKC is a member of the public, and enjoys the same right of access as any other member of the public. This policy of disparate treatment violates the Open Records Law. The reports are available to all or available to none. The LFUCG cannot postpone access “according to the person who is requesting the inspection or the stated or suspected purpose of the inspection.” OAG 89-76, p. 4, 5.
We reaffirm 94-ORD-145 relative to NKC's, or any other applicant's, right to inspect public records without charge. Nothing in the Open Records Law, before or after the 1994 amendments and the decision in Amelkin, supports the proposition that a public agency may assess a charge for inspecting public records, regardless of whether those records are the originals or copies. However, to the extent that 94-ORD-145 upholds a policy of assessing higher copying charges for public records requested for a commercial purpose, that decision is hereby modified so as to bring it into line with the District Court's decision in Amelkin.
The Lexington Fayette Urban County Government should promptly arrange for Northern Kentucky Chiropractic to inspect the accident reports at the police department's records counter without charge.
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 KRS61.880(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
1485
Distributed to:
Katherine K. Yunker
Attorney at Law
P. O. Box 21784
Lexington KY 40522-1784
Theresa L. Holmes
Corporate Counsel
Lexington Fayette Urban County Government
Department of Law
200 East Main Street
Lexington KY 40507
[1] While it appears, from their correspondence, that these parties are familiar with the Amelkin opinion, we recognize that the public generally may not be familiar with the opinion. Although we are reluctant to assess fault where the parties are not aware of the opinion, we cannot approve open records policies which are based on the 1994 amendments to the Act in an open records appeal.