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 Department of Fish and Wildlife Resources improperly denied Kathy Gilliam's October 12, 2010, request for the "video complaint file[d] Dec 2009 by Ivan Gibson on Officer Jason Slone," following Officer Slone's arrest of Mr. Gibson, by characterizing that complaint as a record "within the meaning of KRS 61.878(1)(h) that was compiled in the process of detecting and investigating statutory violations . . . " the premature release of which "could harm the agency since the criminal matter is still pending." The Department failed to meet its burden of proving that the record relating to Officer Slone's alleged misconduct was compiled in the process of investigating and prosecuting the pending criminal matter and that premature disclosure of that record would harm the agency in its investigation and prosecution of the criminal action against Mr. Gibson.
In its October 20, 2010, response to Ms. Gilliam's request, the Department explained:
[A]n internal investigation into this matter is still pending. A trial date of February 2011 has been set by the court. The department will not release any materials regarding this matter until the court proceedings are final. [Emphasis added.]
On appeal, Ms. Gilliam questioned the Department's position, asserting that "[t]he complaint filed on Dec. 11, 2009 by Ivan Gibson on Officer Jason Slone has nothing to do with the court hearing 'trial' that is scheduled February 2010."
In supplemental correspondence directed to this office, the Department responded to Ms. Gilliam's appeal, explaining that Mr. Gibson was arrested in November 2009, charged with a variety of offenses, and subsequently indicted on these charges. 1 Continuing, the Department observed:
On or about December 10, 2010, an interview was conducted by a KDFWR conservation officer pursuant to claims made by Mr. Gibson and his family regarding his treatment while in custody. The interview was recorded. The KDFWR believes that this taped interview is a record within the meaning of KRS 61.878(1)(h) that was compiled in the process of detecting and investigating statutory violations and the disclosure and premature release of the information could harm the agency since the criminal matter is still pending. Therefore, the KDFWR will not release any material regarding this matter until the court proceedings are final.
In the absence of proof that the videotaped complaint was compiled in the process of detecting or investigating the criminal charges against Mr. Gibson contains information that has a direct bearing on Mr. Gibson's pending criminal prosecution and that the Department will be harmed by premature disclosure of that information, we find that the criminal matter is separate and apart from the complaint against Officer Slone. Because the Department did not invoke KRS 61.878(1)(h) to support nondisclosure of the videotaped complaint which spawned the pending internal investigation referenced in its original response to Ms. Gilliam's request, we find that the Department violated the Open Records Act in withholding that complaint.
KRS 61.878(1)(h) authorizes the withholding 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[.] . . . 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 a line of open records decisions dating back to the mid-nineties, the Attorney General recognized:
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, e.g., 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, p. 3; see also 08-ORD-013. Moreover, at KRS 61.871 the General Assembly mandates "that free and open examination of public records is in the public interest," and the exceptions to disclosure contained in the Open Records Act, including KRS 61.878(1)(h), "shall be strictly construed, even though such examination may cause inconvenience or embarrassment to public officials or others." Most importantly, KRS 61.880(2)(c) assigns the burden of proof in sustaining the denial to the public agency. The Department failed to meet its statutorily assigned burden of proof.
In the interest of clarity, we emphasize that there are two actions, one criminal and one administrative, arising out of the November 2009 incident. The complaint at issue in this appeal spawned the internal affairs investigation into Officer Slone's conduct during his arrest of Mr. Gibson and was therefore compiled in the process of investigating that matter rather than the criminal proceedings against Mr. Gibson. The Department made only passing reference to the internal affairs investigation in its responses to Ms. Gilliam's appeal. Instead, it focused on the criminal proceedings against Mr. Gibson. The Department did not attempt to argue that the complaint was a record compiled in the process of investigating or prosecuting the criminal charges. Nor did the Department explain how the complaint related to the criminal charges or how it would be harmed by premature disclosure of information contained therein. Given the fact that Mr. Gibson made the complaint, and was therefore familiar with its contents, such an explanation was crucial if the Department was to meet its statutory burden of proof.
Having failed to satisfy the three part test found in KRS 61.878(1)(h), we find that the Department must disclose the requested complaint to Ms. Gilliam. As noted, the Department failed to establish that the complaint was a record compiled in the process of investigating the criminal charges against Mr. Gibson and that disclosure of the record would harm its investigation and prosecution of those charges. The record on appeal instead indicates that the complaint precipitated the investigation of Officer Slone and was compiled in the process of its internal investigation into his conduct. The Department did not advance this argument or attempt to show harm as a consequence of premature disclosure of the complaint. Because the complaint was made by Mr. Gibson, and he was aware of its content, such a showing would have been difficult, if not impossible, to make. Accordingly, we find that the Department violated the Open Records Act in denying Ms. Gilliam's request.
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.
Kathy GilliamSharon SparrowMargaret Everson
Footnotes
Footnotes
1 The Department did not respond to Ms. Gilliam's statement that Captain Frank Campbell twice agreed to provide Ms. Gilliam with a copy of the "complet[ed]" video complaint.
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