Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Kentucky State Police repeatedly violated the Open Records Act in the disposition of a series of requests submitted by Russell and Sharon Loaring between April 13, 2009, and May 25, 2010, for records relating to "case # 05-09-087 (a shooting involving Charlotte Burke and Daniel Cobb on January 24, 2009)" and documentation reflecting the release of records pertaining to case # 05-09-0087 to "anyone other than KSP employees assigned to [the] case."
On January 24, 2009, Charlotte Burke and Daniel Cobb were shot in Owenton, Kentucky. Ms. Burke died as a result of her wounds. Mr. Cobb survived. In February 2009, Sharon and Russell Loaring were appointed co-executors of Ms. Burke's will. On February 13, 2009, Mr. Cobb retained Crawford Baxter, P.S.C., and Charles E. Carter, to "render legal services on [his] behalf against any and all persons liable for damages and injuries" he sustained. The Loarings began making inquiries concerning the status of KSP's investigation as early as February 10, 2009, and made their first open records request on April 13, 2009, for "all investigative photos, interviews, reports, and recordings relating to the shooting at 417 Cubbage Ave. Owenton, Ky." On the same day, KSP denied the Loarings' request, relying on KRS 17.150(2) and 61.878(1)(h), and explaining that "[t]his information is part of an investigation that is still open . . . ." They made additional inquiries in October, November, and December 2009 and in January and February 2010.
In March 2010, the Loarings were informed that the case was closed on or about February 18, 2010. On March 19 they submitted a request for "all investigative files . . . and records relating to case # 05-09-0087," along with a request for records documenting release of the files to other persons. Having received no response to their March 19 requests, the Loarings resubmitted these requests on March 25, 2010, by certified mail. On March 29, KSP notified them that "the investigative file pertaining to case # 05-09-0087" would be released to them, "to the extent required under the Kentucky Open Records Act, " on or before April 19, 2010. On April 7, the Loarings retrieved 58 pages from KSP, but received no description of the records withheld, no citation to the exception authorizing nondisclosure, and no explanation of how the exception applies to the records withheld. They received no response whatsoever to their request for documentation reflecting the release of records relating to case # 05-09-0087 to "anyone other than KSP employees assigned to the case."
The Loarings initiated this appeal on April 9, 2010, identifying a number of records that were not disclosed to them but of which they had independent knowledge owing to the appearance of those records in pleadings filed in related litigation. Specifically, they noted that in June 2009, the attorneys for Daniel Cobb, James Crawford and Charles E. Carter, attached documentation from the then open investigative file in case number 05-09-0087, some bearing a facsimile date of February 22, 2009, to pleadings filed in collateral proceedings. Further, the Loarings noted, case number 05-09-0087 contained a list of attachments that included:
. 15 evidence/recovered property forms (KSP 41);
. audio recording of dictation at the crime scene, the victim and acquaintances;
. photographs; and
. a 911 call
The Loarings asserted their entitlement to these records.
On April 26, KSP advised this office that the Loarings were "provided with a copy of all public records" relating to the investigation except for the 911 call and photographs deemed so graphic as to justify nondisclosure under KRS 61.878(1)(a). The agency explained that disclosure of some graphic images "would constitute an unwarranted invasion of privacy and may cause emotional distress upon the surviving families of the deceased." KSP agreed to furnish the Loarings with a copy of the 911 tape that it had not produced due to an oversight and asked that we dismiss their appeal. The Loarings responded on April 28, emphasizing once again that they received no response whatsoever to their request for records documenting the release of the investigative file in case number 05-09-0087 "to anyone other than KSP employees assigned to the case . . . ." Acknowledging the receipt of a 58 page investigative file, one audio recording of an interview, one 911 call, and 204 photographs, they questioned why they did not receive all records requested on March 19, 2010, including, e.g., an evidence form initialed by Mr. Loaring when he picked up property from Det. Goodale, additional audio recording referenced in the investigative file, and all photographs.
Given the apparent disparity in the records requested and the records produced, on May 6, 2010, the Attorney General asked that KSP provide this office with a copy of the entire investigative file in case number 05-09-0087, and records documenting the release of the investigative file to anyone other than KSP employees, for in camera inspection pursuant to KRS 61.880(2)(c). Additionally, we asked that KSP explain the apparent discrepancy in the date on which the case was closed based on the fact that in June 2009 Messrs. Crawford and Carter attached investigative records to pleadings filed in collateral proceedings, that an October 5, 2009, uniform offense report from the investigative file indicated the case was "closed," and that the Loarings were advised five times after October 5 that the case was still open.
KSP complied with the Attorney General's request on May 21, 2010, by providing us with copies of "all documents relative to Kentucky State Police case 05-09-0087, including the investigation, audio recordings pertaining to the investigation, the audio recording of the 911 call, all photographs, and evidence logs (KSP 41s)." The agency explained that in addition to the Loarings' request for the investigative records, Glenna Smith requested and obtained 55 pages and one CD on April 9, 2010. KSP did not provide the Loarings or this office with a copy of Ms. Smith's request. With reference to the early release of the investigative file to Messrs. Crawford and Carter, KSP advised that on May 24, 2010, Mr. Crawford, who serves as Commonwealth's Attorney and maintains a private practice in Northern Kentucky, contacted KSP's Office of Legal Services to explain how he obtained a copy of the file:
Mr. Crawford advised that he was asked to represent the victim in this investigation, Danny Cobb, in a civil action attempting to recover damages from the estate of the accused. Mr. Crawford stated that he contacted the Post 5 Detective investigating this matter prior to agreeing to represent Mr. Cobb to determine if any criminal action would be taken in order to prevent a conflict of interest in his representation of Mr. Cobb. The Detective advised Mr. Crawford that by all appearances the incident took place as described by Mr. Cobb and that, due to the death of the accused, there would be no criminal prosecution. After discussing the case with the Detective Mr. Crawford agreed to represent Mr. Cobb civilly. Mr. Crawford further stated that the Detective forwarded him a copy of the investigation after they had spoken, but that he (Mr. Crawford) had not requested the Detective do so. Mr. Crawford stated that he believed that the Detective sent him a copy of the case as a courtesy to him since they had discussed the investigation. Mr. Crawford has since withdrawn as counsel for Mr. Cobb.
KSP noted that there is no record of Mr. Crawford's conversation with the Post 5 detective or the subsequent release of the file.
With reference to the discrepancy in the date on which the case was closed, KSP observed:
The investigation was not closed until February 18, 2010. It appears that the Detective marked on a Uniform Offense Report that the case was closed in October 2009. Upon information and belief, this was marked by the investigator as he received the final laboratory reports and had concluded conducting interviews. However, the investigation remained in open status due to the pending disposition of evidence, staff review of the investigation, and finalization of all paperwork, and was not actually closed until February 18, 2010. In compliance with KSP Policy, a case may not be closed until all evidence has been disposed of.
In closing, KSP offered to provide the Loarings with copies of the KSP 41 evidence logs that it may or may not have previously disclosed to them.
In a final salvo, the Loarings attacked KSP's May 21, 2010, response to our KRS 61.880(2)(c) request for additional information noting:
. only one document, in the 58 page file released to them on April 7, indicates the case was closed and that was the referenced October 5, 2009, uniform offense report;
. KSP asserts that the case remained open "due to the pending disposition of evidence," but the file released to them contained no KSP 41s indicating disposition of evidence; and
. Glenna Smith's March 11, 2010, request that resulted in disclosure to her of 55 pages, as opposed to the 58 pages received by the Loarings, was not included in the records released to them on April 7.
Finally, the Loarings questioned the propriety of KSP's decision to provide copies of an open investigative file to Mr. Crawford "as a courtesy" without providing the file to other requesters. We, too, find KSP's disposition of the Loarings' requests troubling and are obliged to identify several violations of the Open Records Act.
To begin, KSP's disposition of the Loarings' requests constituted a violation of KRS 61.880(1) which 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.
Although KSP fully discharged its open records duties relative to their April 13, 2009, request, the Loarings' March 19, 2010, requests were ignored. As a result of KSP's inaction, the Loarings were compelled to resubmit their request on March 25, 2010. KSP timely responded to the requests by advising the Loarings that the records would be available "to the extent required under the Kentucky Open Records Act" on or before April 19. No explanation for this delay accompanied KSP's response in clear contravention of KRS 61.872(5). 1 When the Loarings retrieved the records from KSP on April 7, they received no description of the records withheld, no citation to the exception authorizing the withholding, and no explanation of how the exception applies to the records withheld in contravention of KRS 61.880(1). They were aware of additional records responsive to their request that were not disclosed to them, including KSP 41 evidence logs, audio recordings, photographs, and a 911 call, by virtue of the fact that these records were attached to pleadings filed by Messrs. Crawford and Carter in collateral proceedings, but KSP failed to address the omitted records. Again in direct contravention of KRS 61.880(1), the Loarings received no response whatsoever to their separate request for records documenting the release of the investigative file to anyone other than KSP employees.
As for the responsive records belatedly disclosed to the Loarings, only after they drew attention to the omissions, we find that KSP violated the substantive provision of the law codified at KRS 61.872(1) declaring that all public records shall be open for inspection. In invoking KRS 61.878(1)(a) to support nondisclosure of photographs containing "graphic images," KSP offered no proof, beyond a bare allegation, that the privacy interest of surviving family members outweighed the public's interest in disclosure. See 05-ORD-075. KSP failed, entirely, to explain the rationale supporting its decision to withhold Glenna Smith's open records request for the investigative file. Finally, the agency acknowledged the inadvertent omission of KSP 41 evidence logs, but shifted the burden to the Loarings to request the logs by contacting KSP. Because the agency, here KSP, is statutorily assigned the burden of proof in an open records dispute per KRS 61.880(2)(c), we find that it failed to meet its burden of proof with regard to the nondisclosure, or belated disclosure, of these records. Until KSP discloses all records that have not already been disclosed to the Loarings, including but not limited to, all photographs, KSP 41's, and the open records request submitted by Glenna Smith, its duties under the Open Records Act will not be fully discharged.
Although the Loarings raise a number of questions concerning the manner in which the investigation in case # 05-09-087 was handled, the single remaining question the Attorney General can properly address in the context of an open records appeal is the question of the propriety of KSP's release, in February or April 2009, of the investigative file to Messrs. Crawford and Carter "as a courtesy" while denying other requesters access. KSP acknowledges that as of the date Mr. Crawford discussed the matter with a Post 5 detective, the detective advised that "due to the death of the accused there would be no prosecution," and thereafter furnished him with a copy of the file. Clearly, the detective believed that disclosure of the file would not harm KSP by "premature release of information to be used in a prospective law enforcement action . . .," a condition precedent to reliance on KRS 61.878(1)(h) and KRS 17.150(2). The pertinent sections of those provisions authorize nondisclosure of:
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[.] KRS 61.878(1)(h).
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. KRS 17.150(2).
. . .
When a demand for the inspection of the records is refused by the custodian of the record, 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. KRS 17.150(3).
Because KSP had determined that there would be no prosecution and released the file to Mr. Crawford, it is difficult to understand how the agency's investigation could have been harmed by disclosure to the Loarings or other requesters. The record on appeal is devoid of evidence that this was an inadvertent disclosure and that KSP was therefore not estopped from denying similar requests. See OAG 83-140; OAG 90-117; compare 01-ORD-113. The fact that the investigation was "open" "pending disposition of evidence, staff review of the investigation, and finalization of all paperwork" did not, standing alone, justify KSP's reliance on these exceptions in denying the Loarings' request. We understand the importance of staff review in the closure of investigative files in order to prevent the inadvertent release of exempted material, such as the identity of confidential informants. However, absent proof of harm arising from premature disclosure, the law does not presume investigative records are closed. Given the fact that both KRS 61.878(1)(h) and KRS 17.150(2) contain language directing that those provisions "shall not be used by the custodian of the records to delay or impede the exercise of rights" granted by KRS 61.870 through 61.884 or KRS 17.150, and the fact that KSP released the file to Mr. Crawford in February or April 2009, we conclude that the agency improperly withheld the investigative file in case # 05-09-087 from the Loarings after April 2009.
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.
Russell and Sharon LoaringEmily PerkinsKathy Peach
Footnotes
Footnotes
1 KRS 61.872(5) provides:
If the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection.
(Emphasis added.)
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -