Request By:
Thomas S. Bridges
217 S. Water Street
Owosso, MI 48867William R. Baker
8090 N. Hollister Rd.
Elsie, Michigan 48831Sheriff Frank G. Augustus
McCracken County Sheriff's Department
301 S. 6th Street
Paducah, KY 42003Daniel Y. Boaz
Courthouse
301 S. 6th Street
Paducah, KY 42003
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in these consolidated appeals is whether the McCracken County Sheriff's Department violated the Kentucky Open Records Act in failing to respond to the request of Thomas S. Bridges for copies of "any and all documents, reports, memoranda, etc. regarding the bridge jumping incident [involving] Timothy Baker on or about March 4, 2004." It is the decision of this office that the Department's failure to notify "in writing [Mr. Bridges and Mr. William R. Baker, respectively], within the three (3) day period, of its decision," cite the specific exception authorizing the withholding of the records, and briefly explain how the exception applies to the records withheld, as mandated by KRS 61.880(1) , constitutes a procedural violation of the Open Records Act. Based on the following, it is the decision of this office that the Department satisfied its burden of proof under KRS 61.878(1)(h) by invoking KRS 61.878(1)(h) and indicating that the investigatory records in question relate to an "open and active" case.
In a letter directed to McCracken County Sheriff Frank Augustus on May 5, 2004, Mr. Bridges requested copies of the specified records on behalf of his client, Mr. Baker. As of June 23, 2004, he had "received nothing" from the Department and, therefore, initiated this appeal. As observed by Mr. Bridges: "I know the request was received, as on or about May 10, 2004, Detective Tom Emery called this office to ask why I wanted the documents requested." The Department does not challenge this assertion.
Upon receiving the notification of Mr. Bridges' appeal from this office, 1 Sheriff Augustus responded on behalf of the Department. According to Sheriff Augustus, the records to which Mr. Bridges is seeking access concern "an open and active death investigation being worked by Department detectives. Accordingly, all of the documents sought by Mr. Bridges are exempted by KRS 61.878(1)(h) at this time." In addition, "some of the documents are also exempted pursuant to KRS 61.878(1)(i) and (j)." By letter dated June 28, 2004, however, Mr. Baker filed an appeal prompted by the Department's failure to respond to the request submitted by Mr. Bridges, requesting "assistance in obtaining a police report." 2 Consistent with governing precedent, we conclude that the Department violated the Open Records Act in failing to respond to both requests and its belated response to Mr. Bridges' request was minimally adequate. Our analysis begins with the procedural issue raised by both appeals.
KRS 61.880(1) sets forth the procedural guidelines with which a public agency must comply in responding to a request submitted under the Open Records Act. In relevant part, KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision . An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld . The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing this mandatory provision, the Kentucky Court of Appeals has observed: "The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, Ky., 926 S.W.2d 856, 858 (1996)(Emphasis added). As evidenced by the italicized language, the agency must issue a written response within three business days of receiving a request. A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act--much less [amount] to substantial compliance." Id .
Failing to respond in a timely and proper fashion, as the Department admittedly did in each of the matters which culminated in this appeal, constitutes a clear violation of KRS 61.880(1). See 04-ORD-050. Public agencies are not permitted to elect a course of inaction. As we first emphasized in 93-ORD-125, the procedural requirements of the Open Records Act "are not mere formalities but are an essential part of the prompt and orderly processing of an open records request." Id., p. 5. To avoid future violations of the Act, therefore, the Department should review and comply with KRS 61.880(1). With respect to Mr. Baker's appeal, the Department declined two opportunities to respond, first, upon receiving Mr. Bridges' request, and second, upon receiving notification from this office of Mr. Baker's appeal, which was prompted by its inaction relative to his attorney's request. Upon receiving notification of Mr. Bridges' appeal, however, the Department directed a response to this office which will be addressed following resolution of the procedural issues presented. At this juncture, we remind the Department that a response issued pursuant to 40 KAR 1:030, Section 2 should be viewed as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Therefore, this office considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or which offer additional support for the agency's original denial. Id.
In its response to Mr. Bridges' appeal, the Department has merely cited the exception which purportedly applies to the records withheld. Noticeably absent from its response is any explanation as to how the cited exception applies to the records withheld as expressly required by KRS 61.880(1). Edmondson establishes that a public agency has the burden of justifying its denial of a request to access public records by referencing the appropriate exception and briefly explaining how that exception applies to the particular documents withheld under this provision. It has long been the position of this office "that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2) and KRS 61.882 to justify the nondisclosure of a public record." 02-ORD-152, p. 5 (Citations omitted). In denying future open records requests, the Department should be guided by the foregoing principles.
Turning to the substantive issue presented, the Department's position is partially validated by governing precedent. Early on, this office recognized that records of law enforcement agencies are subject to public inspection unless specifically removed from application of the Open Records Act by statute. OAG 76-478. "Police departments do not have the authority to act privately, confidentially or secretly unless expressly authorized in particular kinds of cases." Id., p. 2. In OAG 76-511, we reaffirmed this position, noting that "[t]he sovereign is a party to police actions and therefore the public has a right to inspect the records of . . . [its] actions." Id., p. 4. Both of these decisions were premised on the notion that:
Secret police activity without some overriding justification is repugnant to the American system of government. Consequently, when a citizen reports a crime to the police he may generally expect that the news media will learn of the report.
[A law enforcement agency] is the servant of the people and if a citizen wants the services of [that agency] to investigate a crime, he cannot expect that the matter will be kept a secret.
OAG 80-144, pp. 1, 2. On this basis, the Attorney General has consistently held that police incident reports, of the type requested by Mr. Baker, as opposed to investigative files, are not generally exempt from disclosure. 3 02-ORD-36; 99ORD-27; OAG 91-50; OAG 89-76; OAG 80-210.
That being said, "the Attorney General has also recognized that portions of such records may be redacted by a law enforcement agency if the agency can articulate a basis for partial nondisclosure in terms" of one or more of the statutory exceptions codified at KRS 61.878(1). 04-ORD-104, p. 5 (Emphasis added). As we observed in OAG 77-102, "[i]f a police department feels it necessary to withhold certain items from public inspection it may do so under KRS 17.150 [and/or KRS 61.878(1)(h)] but the burden is upon the custodian to justify the refusal of inspection with specificity. " Id., p. 1. A logical extension of this reasoning is that a law enforcement agency must "separate the excepted and make the nonexcepted material available for examination," KRS 61.878(4), and provide particularized justification for the partial nondisclosure. 4 In denying Mr. Bridges' request (and by implication Mr. Baker's subsequent request), the Department relies primarily on KRS 61.878(1)(h), which authorizes withholding:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory and 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 . . . . The 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.
In construing KRS 61.878(1)(h), the Attorney General has repeatedly observed:
In order to successfully raise this exception, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection , KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
95-ORD-95, pp. 2, 3; 02-ORD-179; 00-ORD-196; 99-ORD-162; 97-ORD-93. (Emphasis added). In University of Kentucky v. Courier-Journal & Times Co., Ky., 830 S.W.2d 373 (1992), the Kentucky Supreme Court implemented this legislative mandate, rejecting a claim by the University that records it compiled during the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h). As observed by the Court:
This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself, conceded that the NCAA, a private regulatory entity, is the only "agency" involved in "administrative adjudication. " Therefore, KRS 61.878(1)[(h)] would not apply. Id. at 377.
Having failed to satisfy the first part of the three part test codified at KRS 61.878(1)(h), the University's reliance on this provision was misplaced.
Applying this analysis, the Attorney General has rejected public agencies' reliance on KRS 61.878(1)(h) in a series of decisions. See 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, the Kentucky Board of Medical Licensure failed to justify its denial of an open records request with proof of harm that would result from premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in a 911 tape would harm the City was insufficient to satisfy its statutory burden of proof) ; 96-ORD-56 (Kentucky Labor Cabinet failed to establish that disclosure of records in occupational safety and health investigative file would harm the agency and, therefore, failed to satisfy the three part test); 96-ORD-155 (Department of Insurance was not investigating statutory or regulatory violations and, therefore, would not be harmed by disclosure of rate filings so its reliance on KRS 61.878(1)(h) to withhold the filings was improper); 97-ORD-129 (Hardin County Drug Task Force's reliance on this exception to withhold policy and procedures manual was misplaced since the manual was not compiled in the process of detecting and investigating statutory or regulatory violations); 00-ORD-196 (Jefferson County Corrections Department failed to demonstrate any harm to the Department that would result from disclosing the videotape of an incident that occurred in the Hall of Justice); 02-ORD-179 (record on appeal was devoid of proof that the Oldham County Animal Shelter compiled records relating to the care of a rescued animal in the process of detecting and investigating statutory and regulatory violations or that disclosure of the records would harm the agency). In short, the issue of whether an agency satisfied the criteria necessary to successfully invoke KRS 61.878(1)(h) has arisen in a variety of contexts, but the analysis remains the same. Considering the requirement that the exemptions be strictly construed, codified at KRS 6l.871, and the explicit prohibition against agency custodians using KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to KRS 61.884," a public agency may properly rely on KRS 61.878(1)(h) only if it can clearly demonstrate that it satisfies all three components of the test contained therein. Here, only the third component remains in question.
Noticeably absent from the Department's response is any reference to KRS 17.150(2), pursuant to which "[i]intelligence and investigative reports maintained by criminal justice agencies are subject to inspection if prosecution is completed or a determination not to prosecute has been made." (Emphasis added). To this extent, the Department's response is deficient. KRS 17.150(2) is incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), which provides that "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are not subject to inspection absent a court order. In an early open records opinion, the Attorney General analyzed the underlying purpose of KRS 17.150(2), and its "companion statute," KRS 61.878(1)(h), 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).
When viewed in conjunction, the implication of these provisions is that only those investigative files "pertaining to a named suspect after that suspect has been prosecuted or a decision has been made not to prosecute him" are subject to public inspection. Id. Weighing in favor of nondisclosure is "the fact that such material typically contains hearsay and uncorroborated allegations about individuals who may be innocent and whose reputations could be unfairly injured by publication." Id. Acknowledging these competing interests, this office recognized that "[i]t is generally within the discretion of the police department to decide when a case is [active], merely inactive, or is finally closed." Id., p. 2. In so doing, however, we reminded the police department of the mandatory language found in KRS 17.150(3) and echoed by KRS 61.878(1)(h):
When a demand for inspection of records is refused by the custodian of the record[s], 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 records to delay or impede the exercise of rights granted by this section.
Id. In upholding the police department's denial of the request to inspect specified "investigation reports," the Attorney General observed that the incident which prompted the subject investigation had occurred two months before the request was submitted but declined to "say how long the police department should consider the case inactive before declaring it closed." Id.
In OAG 86-80, however, the Attorney General determined that a public agency could not rely solely upon KRS 61.878(1)(h) and KRS 17.150(2) in denying access to a file relating to a missing person case that had been classified as "an open case (active or inactive as opposed to closed) for almost eight years," citing OAG 83-123 as authority. 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 recognized exception to public inspection" to justify its denial. Id. In contrast, the Attorney General "was not prepared to reach such a result where the investigation ha[d] been ongoing for one and one-half years." OAG 90-143, p. 4. Again recognizing that the burden is on the custodian of records to justify the refusal of inspection with specificity, this office concluded that the KSP had met its burden by invoking KRS 61.878(1)(h) and KRS 17.150(2) and indicating that the investigatory records in question related to an open case. Id., p. 3. Such is the case here.
When viewed in light of the unique facts presented, the Department's cursory treatment of the subject request presents a close question in our view despite the relatively short time frame involved. However, both KRS 61.878(1)(h) and KRS 17.150(2) recognize that law enforcement agencies may withhold investigative records until prosecution is completed or a decision not to prosecute has been made. In other words, "the right of public inspection set forth in KRS 17.150(2) is contingent upon the completion of the investigation and litigation or a determination having been made not to prosecute. " 01-ORD-85, p. 4, citing OAG 90-143, p. 3; OAG 88-27; OAG 87-66; OAG 87-15. Although we certainly appreciate Mr. Baker's need for closure, and encourage the Department to exhibit a spirit of cooperation to the degree permissible in any future correspondence with Mr. Baker and Mr. Bridges related to this matter, Sheriff Augustus has confirmed that the requested records relate to an "open and active" investigation thereby enabling the Department to satisfy its burden of proof.
Although a public agency cannot indefinitely postpone access to investigative records by labeling an investigation "open and active," as indicated in OAG 86-80, this office has consistently recognized that it is "within the sound discretion of the law enforcement agency to decide when a case is active, merely inactive, or finally closed." OAG 90-143, p. 3; 01-ORD-85; 96-ORD-25; OAG 86 80. Accordingly, the Attorney General has been reluctant to determine "how long the [agency] could consider a case inactive before finally declaring it closed." 96-ORD-25, p. 2, citing OAG 86-80, p. 4. Once the investigation is completed or a determination not to prosecute has been made, however, any investigative records relating to the incident in question will be subject to public inspection unless specifically excluded from application of the Open Records Act by another statutory exception.
A party aggrieved by this decision may appeal it by initiating an 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.
Footnotes
Footnotes
1 In his letter of appeal, Mr. Baker indicates that he "made numerous telephone calls to the Sheriff's Department to no avail." As reflected on the notification: "Pursuant to 40 KAR 1:030 Section 2, the agency may respond to [the] appeal." Despite receiving this notification, the Department did not respond nor have we been advised of any action taken by the Department relative to Mr. Baker's request.
2 As explained by Mr. Baker on appeal, his son, Timothy B. Baker, "took his own life on March 04, 2004, by jumping off the I-24 Bridge into the Ohio River at Paducah, Kentucky."
3 See OAG 83-366, p. 1 ("This office has held that while police incident reports are open to public inspection, case files are not open as long as the case is pending").
4 Accordingly, the Department's cursory reference to KRS 61.878(1)(i) and 61.878(1)(j) is insufficient. To clarify, we are not suggesting that the Department's reliance on these exceptions was completely misplaced, only that it must "provide sufficiently particular and detailed information" to successfully invoke either exception. 02-ORD-152, p. 6. Although neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld to a specific exception, such as that required by the federal courts in Vaughn v. Rogers, 484 F.2d 830 (D.C. Cir. 1973), cert. denied 415 U.S. 977 (1974), public agencies such as the Department are "obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable, and to release any documents which do not fall squarely within the parameters of the exceptions and are therefore are not excludable[.]" Id.