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 Office of Scott County Sheriff violated the Open Records Act in denying the request of Matt Ryan for a copy of:
1. All police reports that the sheriff's department has in their possession regarding the deaths of 63-year-old James Gray and his 55-year-old wife Vivian of Sadieville, KY, which took place of April 26, 2007.
2. Any press releases that have been issued regarding their death.
With the exception of a procedural error, we find that the Office of the Sheriff's partial denial of the request on the basis of KRS 17.150(2) and KRS 61.878(1)(h) was proper because the investigation to which the records are related is active and ongoing.
In his letter of appeal, dated May 3, 2007, Mr. Ryan advised that the Scott County Sheriff had failed to respond to his request, sent to that office on April 27, 2007.
After receipt of notification of the appeal, Glenn M. Williams, Scott County Attorney, provided this office and Mr. Ryan with a response to the issues raised in the appeal. In his response, Mr. Williams advised:
It is my understanding that the Scott County Sheriff's Office has in fact failed to respond to Mr. Ryan's open records request within the statutory Three (3) business day time frame. On behalf of the Sheriff's Office, I apologize for this oversight. As a matter of explanation and not excuse, Sheriff Hammonds' wife is critically ill and has been for a number of weeks. This could have been a contributing factor for the unintentional error.
From a legal point of view, I have been made aware that there are uniform report forms and copies of newspaper articles that are being made available to Mr. Ryan and the Office of the Attorney General by attachment hereto. There was no formal press release issued by the Scott County Sheriff's Office. However, Detective Jack Patrick was interviewed by the media.
It is also my understanding that there exists the following documentation involved in the on-going investigation of both cases surrounding the deaths of Mr. and Mrs. James Gray:
It is the position of the Scott County Sheriff's Office that these items are all investigative in nature and thus exempt from public disclosure under KRS 61.878(1)(h), KRS 17.150(2) and previous OAG orders/opinions. These items are highly sensitive, contain crucial investigative material and will jeopardize the on-going investigation if made public. Since these cases are being treated as a double homicide, the release of these items could compromise any criminal charges that may be filed.
In our view, 05-ORD-103, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. By invoking KRS 61.878(1)(h) and KRS 17.150(2) and expressly indicating that the requested records concern an open investigation, the Scott County Sheriff's Office satisfied the burden of proof imposed upon public agencies by KRS 61.880(2)(c). 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." 04-ORD-114, p. 9. Although a public agency cannot indefinitely postpone access to investigative records by labeling an investigation "open and active," as evidenced by prior decisions of this office, the Attorney General 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." Id. (Citations omitted).
Addressing the request for any press releases, Mr. Williams advised that no press releases had been issued and, thus no such record existed. He further explained that Detective Jack Patrick had been interviewed by the media, and he provided Mr. Ryan with copies of newspaper articles about the shooting deaths. Obviously, a public agency cannot afford a requester access to records that it does not have or that do not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find no violation in this regard.
The failure to respond to the request within three business days after its receipt constituted a procedural violation of the Open Records Act. KRS 61.880(1). However, we will not belabor the issue as the agency has acknowledged its error in failing to timely respond, and we assume it will promptly respond in writing to future open records requests.
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.