Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Open Records Act in denying Samuel E. Davies' June 22, 2006, request for a copy of the blood toxicology analysis conducted on the sample of blood drawn from Williamsburg City Police Officer Brad Nighbert following an April 12, 2006, motor vehicle accident with Mr. Davies' client that occurred on Highway 25W in Whitley County. Although we find no support in existing legal authority for the arguments originally advanced by KSP in support of the denial of Mr. Davies' request, we affirm its denial based on the later argument set forth in its supplemental response and premised on KRS 61.878(1)(h) and (l), incorporating KRS 17.150(2)(d) into the Open Records Act.
By letter dated June 29, 2006, KSP notified Mr. Davies that KRS 61.878(1)(a), KRS 61.878(1)(k), and 45 C.F.R. Part 164, the regulations promulgated by the United States Department of Health and Human Services at the direction of Congress following the enactment of the Health Insurance Portability and Accountability Act of 1996, prohibited disclosure of the requested report. Shortly thereafter, Mr. Davies initiated this appeal questioning KSP's reliance on the cited provisions.
In supplemental correspondence directed to this office following commencement of Mr. Davies' appeal, Justice and Public Safety Cabinet Staff Attorney Emily Dennis modified the arguments advanced in support of the denial of his request, but otherwise reaffirmed the agency's denial. Invoking KRS 61.878(1)(h) and (l), as well as KRS 17.150(2), Ms. Dennis explained:
The referenced toxicology report is currently a record maintained as part of an ongoing criminal investigation by KSP Post 11 (Case no. 11-06-0591). Records compiled in connection with a current criminal investigation by the Kentucky State Police are exempt from disclosure pursuant to KRS 61.878(1)(h), since disclosure may constitute the premature release of information to be used in a prospective law enforcement action. The toxicology report may be withheld on the basis of KRS 61.878(1)(h) while criminal prosecution is contemplated or in progress. See 05-ORD-262. Furthermore, KRS 17.150(2)(d) authorizes non-disclosure of intelligence and investigative reports maintained by criminal justice agencies, such as a toxicology report, while a criminal prosecution is pending. KRS 17.150(2) is incorporated into the Kentucky Open Records Act as an Act of the General Assembly under KRS 61.878(1)(l). Under KRS 17.150(2), the toxicology report will be subject to public disclosure following the close of the criminal investigation if prosecution is completed or a determination not to prosecute has been made, unless excepted under some other applicable exemption pursuant to KRS 61.878(1).
(Footnotes omitted.) Noting the difficulties associated with "[n]avigating the boundaries of personal privacy and the applicability of federal law prohibiting unauthorized disclosure of protected health information," Ms. Dennis concluded that KSP's original denial "was based on a mistaken interpretation of" the law, and not "made in bad faith." We agree and affirm. 1
In an early open records opinion, the Attorney General analyzed the purpose underlying KRS 61.878(1)(h), and its "companion statute," KRS 17.150(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). In a more recent open records decision, we determined that the term "investigative report" is "broad enough to extend to laboratory, forensic, and other reports generated in the course of an investigation." 05-ORD-246, p. 2. Based on a line of opinions dating back to 1976, affirmed by the
Kentucky Supreme Court in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992), and reaffirmed by the Kentucky Supreme Court in June 2005, in the case of
Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005), we conclude that the disputed toxicology report may properly be withheld "so long as the possibility of . . . judicial proceedings in this case remains a significant prospect." Skaggs at 391.
In 05-ORD-262, this office directly addressed the issue of access to a toxicology report that was generated in the course of a criminal investigation and utilized in a subsequent criminal prosecution, affirming the medical examiner's denial of a request for same on the basis of KRS 61.878(1)(h) and (l), and KRS 17.150(2). We see no reason to depart from this clearly established precedent.
KSP asserts that the disputed toxicology report "is currently a record maintained as part of an ongoing criminal investigation by KSP Post 11 (Case no. 11-06-0591)," and that premature disclosure may compromise prospective law enforcement action. 2 The report therefore qualifies as a record of a law enforcement agency compiled in the process of detecting and investigating statutory or regulatory violations the premature disclosure of which would harm the agency, per KRS 61.878(1)(h), and as an "investigative report maintained by a criminal justice agency . . . that may be withheld until prosecution is completed or a determination not to prosecute has been made," per KRS 17.150(2). The potential harm to KSP is predicated upon its reluctance to release a record that may be relevant to a future enforcement action. This is sufficient, albeit minimally, to support KSP's denial of Mr. Davies' request. We therefore affirm that denial.
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 In 04-ORD-143, the Attorney General held that "HIPAA has no application to records generated by a police department in discharging its duty to protect public safety." This position was premised on the view that a police department is not a covered entity, for purposes of HIPAA, and that records generated by such a department do not contain protected health information. 04-ORD-143, citing Tex. Att'y Gen. ORD-681 (2004). We continue to ascribe to this view.
2 KSP makes only the barest showing relative to potential harm from premature disclosure. We remind KSP that the language of KRS 17.150(3), echoed in KRS 61.878(1)(h), states that "[w]hen a demand for the inspection of records is refused by the custodian of records, the burden shall be upon the custodian to justify the refusal 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." We strongly urge KSP to bear this statutory language in mind in responding to future open records requests.