NOT TO BE PUBLISHED

97-ORD-19

January 30, 1997

In re: Richard P. Powell/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 an open records request. In October, 1996, Richard P. Powell, director and publisher of The Daily Legal, submitted a request to the LFUCG in which he asked that he be provided with copies of all traffic accident reports within the LFUCG's jurisdiction on a weekly basis. On October 28, 1996, Glenda D. Humphrey, corporate counsel for the LFUCG's Department of Law, responded to Mr. Powell's request. Acknowledging that traffic accident reports are open records under the Kentucky Open Records Act, she nevertheless denied the request, expressing the view that The Daily Legal is a “publication designed to avoid the commercial purpose fee for open records,” and not a medium for disseminating newsworthy information of general interest. This appeal followed.

We are asked to determine if the Lexington Fayette Urban County Government violated provisions of the Open Records Act in denying Mr. Powell's request. 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 Mr. Powell's request which is consistent with the federal district court's opinion in Amelkin.

In 97-ORD-8, this office held that the Attorney General could not approve a LFUCG records policy which incorporate the 1994 amendments to the Open Records Act. At page 3 of that decision, we discussed the genesis, as well as the effect, of the Amelkin decision:

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.”

We reiterate, for purposes of this open records appeal, that the Attorney General is enjoined from enforcing the 1994 amendments to KRS 61.874, et seq., and therefore cannot approve the LFUCG's denial of Mr. Powell's request on the basis asserted.

In the interest of avoiding future appeals, we refer the parties to 97-ORD-18, a decision recently issued by this office which involved a similar request from Mr. Powell to the City of Louisville Division of Police. The City did not dispute the general proposition that police traffic accident reports are open records under the open records law, but focused on Mr. Powell's failure to request existing records. At page 2 of that decision we observed:

KRS 61.872(2) provides:

Any person shall have the right to inspect public records. The official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected.

KRS 61.870(2) defines the term “public record” as:

[A]ll books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, software, or other documentation regardless of physical form or characteristics, which are prepared, owned, used, in the possession of or retained by a public agency.

Thus, the “right to inspect public records” attaches only after those records have been “prepared, owned, used, in the possession of or retained by a public agency.” No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records. To the extent that Mr. Powell's request is prospective, the City is not obligated to honor it.

Citing a line of authorities which dates back to 1981, we held that the City was not obligated to honor Mr. Powell's request because “the Open Records Act regulates access to existing records only.”

In closing, we found that pursuant to KRS 61.872(2), the City could properly require Mr. Powell to submit a new application each time he requests copies of records, and that it need only honor his requests for existing records. We noted that inasmuch as Mr. Powell requested that he be furnished with copies of records, as opposed to the right to inspect records, he was subject to the requirement, found at KRS 61.872(3)(b), that he precisely describe the public records which he wished to obtain copies of, and that those records be readily available within the public agency. We have enclosed a copy of this decision, and trust that the parties will be guided by the holdings and observations contained therein.

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

28

Enclosure

Distributed to:

Richard P. Powell

The Daily Legal

8866 Oak Circle

Tampa FL 33615

Glenda Humphrey

Corporate Counsel

Lexington Fayette Urban County Government

200 East Main Street

Lexington KY 40507