Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington Fayette Urban County Government Division of Police violated the Open Records Act in denying Clay City Times reporter Amanda Trent's October 2, 2001 request for records relating to the Division's 1992 investigation of John D. Fryman, a former deputy at the Fayette County Detention Center and the current chief of police in Clay City. For the reasons that follow, we affirm the Division's denial of Ms. Trent's request.
Prior to submitting her request to the Division of Police, Ms. Trent submitted a request to the Detention Center for records documenting Mr. Fryman's separation from employment, "including, but not limited to, resignation or termination letters." The Center responded on August 24 1 and agreed to provide Ms. Trent with five records reflecting Mr. Fryman's suspension, recommended dismissal, and ultimate resignation. Among the records disclosed was a memorandum recommending that the matter be referred to the Division of Police "to continue the investigation." On October 2, Ms. Trent requested that the Division of Police provide her with copies of "all available documents regarding the investigation of John D. Fryman . . . ." Shortly thereafter, the Division denied her request, advising her that the requested records were part of a pending investigation and therefore excluded from public inspection by KRS 61.878(1)(h).
Dissatisfied with the Division's response, Ms. Trent initiated this open records appeal questioning the Division's reliance on KRS 61.878(1)(h). She explained:
From the documentation I have received and from phone conversations with involved parties, it is not evident that releasing the records would identify an informant. It seems the argument of Lexington-Fayette Urban County Police Department is that the agency would be harmed due to "premature release of information." However, all the information I have gathered, as well as my conversation with Fryman, indicates there has been no recent investigation, nor attempt to prosecute.
Ms. Trent relied on OAG 86-80, in which the Attorney General recognized that a public agency's denial of access to records relating to an eight year old investigation on the basis of KRS 17.150 and KRS 61.878(1)(h), without explanation, did not meet the agency's statutory burden of proof. She maintained that the Division's denial of her request was similarly improper because no specific reasons were offered for maintaining in an open but inactive status the nine year old investigation to which her request related.
In a supplemental response directed to this office following commencement of Ms. Trent's appeal, LFUCG corporate counsel Glenda Humphrey George elaborated on the Division's position. By way of background, Ms. George explained:
On September 1, 1992, the Director of Community Corrections (formerly Detention Center) contacted the chief of police concerning allegations of sexual misconduct between an inmate and a guard and the entry of drug contraband in the detention center facility. The case was assigned to Sgt. Dan Gibbons of the Division of Police.
During his investigation, Sgt. Gibbons interviewed the inmate, LaFonda Faye Foster, to determine if she was the victim of sexual abuse. Ms. Foster refused to file a police report or file any type of complaint. The Detention Center was, however, able to identify two detention officers who could have been involved in the alleged incident. Additionally, Sgt. Gibbons identified two non-employee individuals who could have been involved in bringing contraband into the facility. However, no evidence was discovered supporting a belief that any of the named individuals were involved.
Based on the facts of the case, it was Sgt. Gibbons' recommendation that this investigation be placed on pending status until additional information was obtained that might substantiate the allegations of sexual abuse of Ms. Foster and a suspect could be arrested. Because of the length of time that has elapsed, however, the case is now considered inactive.
Although the alleged victim has refused to cooperate with police over time, Ms. George emphasized:
During the course of their investigation, it is not uncommon for police officers to discover information in one case that will allow them to solve or identify a perpetrator in a separate case. It is not improbable that the alleged victim may decide to contact the Division of Police and file a complaint against the perpetrator.
She indicated that because additional information might be uncovered in other investigations that could lead to enforcement action, or the alleged victim may ultimately elect to cooperate in building a case against individuals identified as possible suspects, the case is considered inactive but not closed. It was her position that the Division properly relied on KRS 17.150(2) and KRS 61.878(1)(h) as the basis for denying access.
In an early open records opinion, the Attorney General analyzed the purpose underlying the exemption codified at KRS 17.150(2), and its "companion statute," KRS 61.878(1)(h) , 2 observing that "[i]nvestigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2, citing Privacy: Personal Data and the Law, National Association of Attorneys General (1976). There, we recognized that "[i]t is generally within the discretion of the police department to decide when a case is [active], merely inactive, 3 or is finally closed." Nevertheless, the Attorney General reminded the law enforcement agency of the language found in KRS 17.150(3), echoed in KRS 61.878(1)(h), 4 which provides that "[w]hen a demand for the inspection of the records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity. Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section." OAG 83-123, p. 2. The Attorney General concluded that this office could not, in general, "say how long the police department should consider the case inactive before declaring it closed." Id.
In OAG 86-80, the Attorney General determined that in light of the admonition contained in KRS 17.150(3) and KRS 61.878(1)(h), a law enforcement agency could not, without explanation, properly rely on KRS 61.878(1)(h) and KRS 17.150(2) to shield from disclosure a case that had been maintained as "an open case (active or inactive as opposed to closed) for almost eight years." OAG 86-80, p. 4. Because the agency had not met the burden of proof imposed by law relative to a denial based on these provisions, this office held that "[i]t should either make the material available for inspection or it should set forth some other statutorily recognizable exception to public inspection . . . ." Id. Conversely, in OAG 90-143, we expressed our unwillingness "to say that one and one-half years is an unreasonable time to investigate [and prosecute] a case." Again recognizing that the burden is on the custodian of records to justify the refusal of inspection with specificity, we concluded that the law enforcement agency met this burden by invoking KRS 61.878(1)(h) and KRS 17.150(2), and establishing that the investigative records in dispute pertained to an open case. See also 96-ORD-25 and 96-ORD-27.
Both KRS 61.878(1)(h) and KRS 17.150(2) recognize that investigative records maintained by law enforcement agencies may be withheld until prosecution is concluded or a determination not to prosecute has been made. Hence, "the right of public inspection set forth in KRS 17.150(2) [and KRS 61.878(1)(h)] is contingent upon the completion of the investigation and litigation or a determination having been made not to prosecute. " OAG 90-143, p. 4. Although several years have elapsed since this investigation was launched by the LFUCG Division of Police, Ms. George confirms that it is considered an open case. Evidence may be developed in parallel investigations or the alleged victim may ultimately elect to cooperate with the authorities in building a case for prosecution. As evidenced in OAG 86-80, we concur with Ms. Trent in her view that a public agency cannot, without explanation, indefinitely postpone access to investigative records by labeling an investigation open; however, as evidenced in OAG 90-143, we are not prepared to say how much time is an unreasonable time to investigate and prosecute a case. Having established that the disputed records consist of investigative reports maintained by a criminal justice agency, and that prosecution has not been completed, we conclude that LFUCG Division of Police did not abuse its discretion in invoking KRS 17.150(2) and KRS 61.878(1)(h) to shield those records from disclosure. OAG 86-80 is therefore not controlling, and we affirm the Division's denial of Ms. Trent's request.
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 proceedings.
Amanda TrentP.O. Box 547Stanton, KY 40380
Glenda Humphrey GeorgeLexington Fayette Urban County GovernmentDepartment of Law200 East Main StreetLexington, KY 40507
Footnotes
Footnotes
1 On August 17, the Division notified Ms. Trent that the requested records were being retrieved, and that she would "receive a response on or about Wednesday, August 22, 2001 concerning the status of her request."
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2 KRS 17.150(2) provides in relevant part:
Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made. However, portions of the records may be withheld from inspection if the inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in the records to be used in a prospective law enforcement action.
KRS 61.878(1)(h) provides, in relevant part:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action.
3 A case is deemed "inactive" when "no suspect has been determined and active investigation has ceased because the investigator can find no other trails to follow . . . ." OAG 83-123, p. 2.
4 The final sentence of KRS 61.878(1)(h) thus provides that "[t]he exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884."
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