Opinion
Opinion By: Jack Conway, Attorney General; Ryan Halloran, Assistant Attorney General
Open Records Decision
This matter having been presented to the Office of the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that Todd County Dispatch met its statutorily assigned burden of proof 1 in denying Todd County Standard Editor Ryan Craig's March 24, 2011, request to "review logs and listen to any 911 calls that came into Todd County Dispatch from 9:50 p.m. on February 4, 2011, to a.m. on February 5, 2011." This office affirmed Trigg County Emergency Services' denial of a request for access to 911 calls and dispatch logs in 09-ORD-143 based on the finding that Trigg County "successfully built a case for nondisclosure postulated on the harm to [the Kentucky State Police] investigation of a triple homicide that would result from premature disclosure of the records." Todd County Dispatch makes the same showing of harm to KSP's investigation of the homicide that occurred during or before the referenced time frame to support nondisclosure of the 911 call and dispatch logs. Here, as in 09-ORD-143, an arrest had been made at the time the request was submitted and the records withheld constituted primary evidence establishing critical elements of the offense.
In a timely written response, Todd County Dispatch invoked KRS 17.150(2) 2 and 61.878(1)(h) to support nondisclosure of the requested records. The agency quoted from 09-ORD-143, relating to concurrent jurisdiction between two agencies and recognizing that the records of one agency may be withheld under authority of KRS 61.878(1)(h) if premature disclosure of its records will harm the ongoing investigation of the other agency, advising Mr. Craig that KSP's investigation into the homicide "is open and ongoing . . . and that premature disclosure of the records will harm or impede that ongoing investigation."
Shortly thereafter, the Todd County Standard initiated this appeal questioning Todd County Dispatch's position that disclosure of the records would harm the investigation or enforcement proceedings. Mr. Craig argued:
A person has been arrested and indicted in the murder in question. That person also already had access to discovery and the recording. The person has also, according to the state police records, confessed to the murder . . . .
If the state police or the county feel as if there is a reason (such as the potential for other arrests in the murder or more charges against the accused because of the record) then we submit that is what the denial letter should have said.
Additionally, Mr. Craig asserted that KRS 61.878(1)(h) is inapplicable to the requested records because they are not law enforcement agency records and were not compiled in the process of detecting or investigating statutory or regulatory violations. 3
In supplemental correspondence directed to this office, Todd County Dispatch reiterated that KSP has "informed the officials associated with the county dispatch system that the matter continues to be an open murder investigation and further their request the records not be furnished at this time" since "premature disclosure of the records will harm or impede the ongoing investigation." The agency again quoted the language from 09-ORD-143, relating to concurrent jurisdiction, maintaining that "the custodian clearly articulated a recognized reason for disclosure" and observing:
[A]n arrest does not end an investigation. Contrary to Mr. Craig's assertions, neither the State Police, nor any other agency, is required by the Open Records Act to tell him where an investigation may be focused.
Efforts to obtain premature disclosure undermine the administration of justice . . . 09-ORD-143 makes clear the Trigg County records were withheld after an arrest was made. Consequently, in [the Attorney General's] earlier decision, whether or not an arrest is made was not the issue. The issue is whether or not the police agency continues to assert such materials will impede its ongoing investigation.
The law enforcement agency's assertion that premature disclosure of records will impede its investigation is one part of a three part analysis, and is supported by proof relative to this particular case as well as in camera inspection of the disputed record under authority of KRS 61.880(2)(c). We therefore find that Todd County Dispatch met its statutory burden in denying Mr. Craig's request.
In 07-ORD-139, this office analyzed the propriety of Central City Dispatch's reliance on KRS 61.878(1)(h) 4 to deny a request for investigative records relating to a shooting. We observed:
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 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.
07-ORD-139, p. 4, citing 95-ORD-95, 97-ORD-93; 99-ORD-162; 00-ORD-196; 02-ORD-179. In the same decision, we referenced a Kentucky Supreme Court opinion and a series of open records decisions rejecting the agencies' claims that KRS 61.878(1)(h) authorized nondisclosure of investigative records based on the failure to satisfy one or more of the three part test found in KRS 61.878(1)(h). A copy of 07-ORD-139 is attached hereto and incorporated by reference. We concluded that in the absence of "specific proof" 5 that premature disclosure of the requested 911 calls and dispatch reports would harm the ongoing investigation into a shooting, we were compelled to find that Central City Dispatch violated the Open Records Act in denying the request.
Todd County Dispatch relies on 09-ORD-143, an open records decision arising from a record on appeal that "[stood] in marked contrast to the record in the appeal that culminated in 07-ORD-139." 09-ORD-143, p. 4, 5. There, Trigg County Emergency Services presented proof, in the form of a letter from KSP to the Trigg County Emergency Services director, of a specific request that "all 911 calls and radio traffic" be withheld to avoid influencing witness statements and while "forensic laboratory testing on certain items of evidence" was underway. KSP amplified on its position several days later, explaining that:
Captain Kent, the Post Commander of the agency that is investigating these capital murders, has advised this office that these recordings are crucial pieces of evidence in a pending capital murder investigation and that the premature release of these materials would jeopardize the prosecution of this case. It is anticipated that these recordings will be used during the trial of the Defendant and premature release of these recordings before prosecution has been completed would cause irreparable harm to both the prosecution and defense.
This, coupled with additional proof of ongoing discussions between KSP and the Trigg County 911 director's office, led the Attorney General to conclude that Trigg County Emergency Services "properly invoked KRS 61.878(1)(h) on behalf of the Kentucky State Police, the law enforcement agency responsible for investigating the triple homicide that resulted in the creation of the disputed records." 09-ORD-143, p. 4.
Todd County Dispatch sustains its burden of proof relative to the invocation of KRS 61.878(1)(h) by drawing factual parallels between the record on appeal here and the record on appeal in 09-ORD-143 and providing specific proof of harm from premature disclosure of the requested records. In both cases concurrent "custody" of the record exists and arrests have been made. Todd County Dispatch produces proof that KSP has requested nondisclosure of the 911 tape as primary evidence the disclosure of which would harm the investigation and enforcement action. Ultimately, Todd County Dispatch "successfully buil[ds] a case for nondisclosure postulated on the harm to KSP's investigation . . . that would result from premature disclosure of the requested records." 09-ORD-143, p. 5. Although the question presented here is closer than the question presented in 09-ORD-143, it must be resolved in favor of Todd County Dispatch given the harm to the investigation and prosecution that would result from premature disclosure of the records.
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.
Distributed to:
Ryan CraigMisty GloverHarold M. Johns
Footnotes
Footnotes
1 KRS 61.880(2)(c) assigns the burden of proof to the agency, providing as follows:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
2 Todd County Dispatch did not elaborate on its position relative to KRS 17.150(2) in this or subsequent correspondence.
3 But see 09-ORD-227, rejecting this claim when emergency dispatch asserts KRS 61.878(1)(h) on behalf of another agency which has compiled the 911 call records as part of an investigation of a crime.
4 KRS 61.878(1)(h) authorizes 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 . . . [.] 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.
5 Central City Dispatch offered no proof to support its claim, attaching a highlighted copy of a Kentucky Court of Appeal's opinion involving access to a 911 domestic violence call in lieu of proof.