Request By:
Richard Eggers
Grayson County Detention Center
320 Shaw Station Road
Leitchfield, KY 42754Kimberly H. Willis
Public Information Officer
Grayson County Detention Center
320 Shaw Station Road
Leitchfield, KY 42754Thomas H. Goff
Grayson County Attorney
P. O. Box 4100
Leitchfield, KY 42754-4100David P. Bowles
Landrum & Shouse
Suite 1900
320 West Main Street
Louisville, KY 40202-1395
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Grayson County Detention Center (GCDC) violated the Open Records Act in partially denying Richard Eggers' January 27, 2006, request for a copy of "any and all of my disciplinary reports," "a copy of all detainers or documents relating to new charges that may be being used as a detainer, " and "all of my classification records." For the reasons that follow, we find that the GCDC's initial response was procedurally deficient and that insufficient information is presented in this appeal to determine whether the GCDC properly denied Mr. Eggers access to the November 29, 2005, incident report.
By letter dated January 30, 2006, Kimberly H. Willis, Public Information Officer, GCDC, responded to Mr. Eggers' request advising him:
I have received your request for Public Information. However, any information you may need regarding the November 29, 2005 incident can not be released at this time. See KRS 61.878, Due to the ongoing investigation with the Kentucky State Police. At the end of the investigation, you may request copies of any paperwork pertaining to the November 29th incident.
Shortly thereafter, Mr. Eggers initiated the instant appeal, challenging in part, that the response failed to comply with the procedural requirements of KRS 61.880(1), by failing to explain how KRS 61.878 applied to the records withheld.
After receipt of the notification of the appeal and a copy of the letter of appeal, David P. Bowles, General Counsel for the GCDC, provided this office with a response to the issues raised in the appeal. Elaborating on the agency's initial response, Mr. Bowles advised:
KRS 61.878 specifically exempts records of law enforcement agencies such as the Grayson County Detention Center and the Kentucky State Police from production under the Kentucky Open Records Act if said records were "compiled in the process of detecting or investigating statutory" violations and due to the inherent risk of "premature release of information to be used in a prospective law enforcement action. " Ms. Willis clearly cited the appropriate statute although she did not cite to the appropriate subsection, i.e., "h". She also cited an ongoing investigation being conducted by the Kentucky State Police regarding this November 29, 2005 incident involving Mr. Eggers.
As indicated in Ms. Willis' correspondence to Mr. Eggers, once the Kentucky State Police have completed their investigation by filing charges or closed the investigation without filing charges, he is certainly entitled to copies of the incident reports surrounding this incident. Until such time, I believe these records are not subject to disclosure under the Kentucky Open Records Act due to the sensitive nature of the ongoing criminal investigation and of the potential danger to informants involved in the investigation.
KRS 61.880 sets forth the duties and responsibilities of a public agency relative to a request received under the Open Records Act. Subsection (1) of that provision requires that a public agency, upon receipt of a request for public records under the Act, respond in writing to the requesting party within three working days of the receipt of the request, and indicate whether the request will be granted. If all or any portion of the request is denied, the agency must cite the specific exception authorizing nondisclosure, and briefly explain how the exception applies to the record withheld. Although the GCDC's initial response cited KRS 61.878(1) as the basis for withholding access to the incident report, it did not cite the specific exception authorizing nondisclosure and it failed to explain how the exception applied to the record withheld, as required by KRS 61.880(1). To this extent, GCDC's initial response constituted a procedural violation of the Open Records Act. The procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5.
In its supplemental response, the GCDC advised that the record at issue was withheld under authority of KRS 61.878(1)(h). However, we find that the GCDC did not meet its statutory burden of proof in denying access to the incident report. In order to successfully raise KRS 61.878(1)(h) as a basis for nondisclosure, 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. The mere invocation of an exception, without an adequate explanation of how the exception applies to the record or records withheld, does not satisfy the agency's burden of proof.
Assuming for the sake of argument that GCDC is a law enforcement agency, the responses do not establish that the incident report was compiled in the process of detecting and investigating statutory or regulatory violations or how release of the incident report would harm the GCDC. Although the agency's reliance on this exception may not have been entirely misplaced, it failed to provide sufficiently detailed information in its responses to satisfy its burden for invocation of KRS 61.878(1)(h).
In addition, the responses of the GCDC do not indicate how release of the incident report would harm the Kentucky State Police's investigation or that the Kentucky State Police had advised that premature release of the incident report could harm its ongoing investigation. 1 Compare 05-ORD-259, in which we found that the Bowling Green Police Department's reliance upon KRS 61.878(1)(h), was supported by its explanation that premature disclosure of a particular report would impede its investigation, and any potential enforcement action, by compromising the credibility of witnesses through premature disclosure of details of the incident.
The GCDC did indicate in its supplemental response that release of the incident report "could pose a potential danger to informants involved in the investigation." This possibility of danger to informants if the record is disclosed suggests another possible basis for withholding access to the records. KRS 197.025(1) states that "no person, including any inmate confined in a jail or any facility . . . shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee 2 to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person." 01-ORD-224 (enclosed). GCDC's response indicates that release of the incident report could pose a possibility of a threat to the security of an inmate (s) or to the security of the institution. See, 01-ORD-224 (Correctional institution properly relied upon KRS 197.025(1), incorporated into the Open Records Act by KRS 61.878(1)(l), in withholding disclosure of confidential informant records as release of the records would constitute a threat to the security of the institution) and 03-ORD-212 (Correctional institution properly redacted portions of incident reports and disciplinary actions which it determined would pose a threat to the security of the inmate or to the institution).
Thus, insufficient information is presented in the instant appeal for this office to determine whether a basis exists for the GCDC to properly deny access to the incident report at issue. The GCDC may only withhold the record, or portions of record, if it can articulate the basis for doing so in terms of the requirements of KRS 61.878(1)(h) or other applicable exceptions to disclosure under the Open Records Act. Accordingly, the GCDC should promptly respond to Mr. Eggers' request, as required by the requirements of KRS 61.880(1). If it again denies access to the incident report at issue, or portions thereof, it must articulate the reasons for doing so under the terms of KRS 61.878(1)(h) or other applicable cited exceptions.
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.
Footnotes
Footnotes
1 This office has held that where there is concurrent jurisdiction between two agencies, and they both have an interest in the matter being investigated, the records of one agency may be withheld, under authority of KRS 61.878(1)(h), if premature release of the requested records could harm the ongoing investigation and prospective law enforcement action of the other agency. 01-ORD-217; 97-ORD-52; OAG 90-116.
2 In this case, the GCDC acts as designee. Accord, 02-ORD-82; 00-ORD-182.