NOT TO BE PUBLISHED
97-ORD-26
February 19, 1997
In re: William F. Polk/Kentucky State Police
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky State Police's partial denial of an open records request submitted by William F. Polk. On January 7, 1997, Mr. Polk requested access to, and a copy of, the current KSP policy manual and the Intoxilyzer 5000 manual. On January 13, 1997, Diane H. Smith, official records custodian for KSP, granted Mr. Polk's request to inspect and copy the Intoxilyzer 5000 manual, but denied his request for the KSP policy manual. Relying on KRS 61.878(1)(j) and 93-ORD-18, Ms. Smith explained that the manual “is an intra-agency document setting forth policies affecting the security of police officers and the public. . . .” This appeal followed.
On January 27, 1997, KSP amended its response to Mr. Polk's request. Citing 95-ORD-113, Ms. Smith sent Mr. Polk a copy of the manual's table of contents, and asked that he mark the sections which he wished to review. She indicated that KSP would then review his request pursuant to KRS 61.878(1)(j).
The question presented in this open records appeal is whether KSP properly relied on KRS 61.878(1)(j) and 95-ORD-113 in responding to Mr. Polk's request. For the reasons set forth below, and upon the authorities cited, we conclude that KSP's reliance on the cited exemption and open records decision was misplaced, and remand this matter to KSP for a response consistent with this office's decision in 95-ORD-121, a copy of which is enclosed.
For many years this office took the position that operations or policy manuals of detention centers were excluded from the mandatory disclosure provisions of the Open Records Act by operation of KRS 61.878(1)(j). That provision authorizes the nondisclosure of:
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
In an early opinion, the Attorney General explained this position:
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.
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 and 93-ORD-18).
We declined to extend the reasoning of OAG 79-546 to the office procedure manual of a Commonwealth's Attorney in OAG 92-112 since release of the manual would not imperil personal and public security. For the same reasons, in 94-ORD-114 we held that the requested portions of the State Police policy manual, which included 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, could not be withheld under the reasoning of OAG 79-546 and its progeny.
Based on the latter opinion, and in light of the clear directive found at KRS 61.878(4), [1] in 95-ORD-113 we held that the policy of blanket nondisclosure which the State Police had adopted relative to its policy manual violated the Open Records Act. At page 5 of that decision we observed:
[A]ll 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.
Recognizing that the process of reviewing the manual to extract the nonexempt portions might be a laborious one, we nevertheless concluded that KSP's “policy of blanket nondisclosure is inconsistent with both the spirit and the letter of the Open Records Act.” 95-ORD-113, p. 5.
Shortly thereafter, this office revisited the issue of access to policy manuals of agencies whose functions involve personal and public security and administrative order. In 95-ORD-121, we reevaluated the line of Attorney General's open records decisions beginning with OAG 79-546, and held:
To the extent that the policy and procedures manual of a public agency represents final action of the agency relative to the matters addressed in the manual, the earlier line of opinions . . . can no longer be relied on as controlling.
95-ORD-121. These opinions, which were premised on the notion that a policy manual is a preliminary intra-agency document in which policies are formulated or recommended, were thus modified. Relying on City of Louisville v Courier Journal and Times, Ky. App., 637 S.W.2d 658 (1982); Kentucky State Board of Medical Licensure v Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 658 (1983), and University of Kentucky v Courier-Journal and Louisville Times, Ky., 830 S.W.2d 373 (1992), we concluded that “materials that were once preliminary in nature lose their exempt status once they are adopted by the agency . . . “ in its final action.
Nevertheless, we concluded that portions of a policy manual could be withheld pursuant to KRS 61.872(6) [2] “if release of those records would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records, or information contained therein.” 95-ORD-121. It is instructive to quote at length:
Such a request may be treated as unreasonably burdensome within the meaning of KRS 61.872(6) which provides:
If the application places an unreasonable burden in producing public records . . . , 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.
Nondisclosure is warranted in the present case to the extent that it protects those portions of the manual containing policies and procedures, which, if revealed, would enable persons to impede the goals for which the policies and procedures were adopted, to wit, the safety and security of a detention facility. In more general terms, and with respect to other public records [footnote omitted], nondisclosure is warranted if the records could be used to circumvent or violate the law. If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies. In other words, the provision is expansive enough to authorize judicious use, where warranted, but narrow enough to prevent profligate use, where unwarranted.
95-ORD-121, p. 8.
We concluded by noting that it would be “incongruous to attribute to the General Assembly an intention to require public agency revelation of internal manuals, or other public records, which would facilitate violation of the law and undermine its enforcement.” 95-ORD-121, p. 9, citing Renaker v Commonwealth, Ky. App., 889 S.W.2d 819 (1994). Consistent with the rule of statutory construction that statutes should not be construed so as to bring about an absurd or unreasonable result, we held:
[T]he Open Records Law must be given a construction that is reasonable, and promotes the public's interest in security and administrative order. To that end, we find that the law, by and through the cited exemptions, prohibits disclosure of public records containing information the disclosure of which would significantly compromise that interest.
95-ORD-121, p. 9. Pursuant to KRS 61.878(4), we directed the Bullitt County Jail to release to the requester those portions of its policy manual “whose disclosure would not necessitate an immediate revision in policy and practice relative to the preservation of order in the facility.” Id.
It is by this standard, and under this provision, that KSP's analysis of its policy manual should be undertaken. KSP may properly withhold those portions of the manual the disclosure of which would necessitate an immediate revision in policy and practice to insure personal and public security and preserve administrative order. KRS 61.872(6); KRS 61.878(4); and 95-ORD-121. We remand this matter to KSP to proceed under these provisions of the Open Records Law, and the open records decision construing them, rather than KRS 61.878(1)(j) and 95-ORD-113, in releasing the nonexempt portions of its policy manual to Mr. Polk.
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
78
Enclosure
Distributed to:
William F. Polk
Polk & Polk
135 Second Street
Henderson KY 42420
Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort KY 40601
[1] 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.
[2] We also recognized that portions of the Bullitt County Jail manual, which was at issue in that appeal, could be withheld pursuant to KRS 61.878(1)(l) and KRS 197.025, relating to records the disclosure of which is deemed to constitute a threat to the security of inmates, correctional staff, the institution, or any other person. That provision is not applicable here.