Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying Sarah Teague's August 23, 2012, request for "[a]ll evaluations of police procedure (which may also be called, 'incident reports'), for any/all 'incidents' in the entire investigation of the abduction of my daughter, Heather Danyelle Teague[,]" who was abducted on August 26, 1995, in Henderson County, Kentucky, from Newburgh Beach. Ms. Teague provided a list of incidents for which KSP may have "made an evaluation" or generated an "incident report," including eyewitness interviews, DNA reports, and sketches. In a timely written response, KSP Official Custodian of Records Shiann N. Sharpe denied the request, explaining that such items are "evidence that is part of an active investigation that is still open ." (Original emphasis.) Ms. Sharpe further advised that in 07-ORD-140 this office affirmed the denial by KSP of a request for investigative records pertaining to this investigation; accordingly, she denied the request "pursuant to KRS 17.150(2), 61.878(1)(h), and 07-ORD-140 as public disclosure of this evidence pertaining to a case that is being actively investigated could irreparably harm the ability of [KSP] to seek criminal prosecution."
Shortly thereafter, Ms. Teague initiated this appeal, noting that five years had passed since a previous appeal involving the accessibility of certain records pertaining to this investigation, which culminated in 07-ORD-140, wherein this office affirmed the denial by KSP but "remind[ed KSP] that a public agency cannot indefinitely postpone access to investigative records by labeling the investigation open or active." Ms. Teague questioned whether KSP had violated the intent of 07-ORD-140 by continuing to withhold such records after 17 years and listed seven examples of what she believed were "serious discrepancies in evidence and police procedure that KSP won't properly explain." 1 Because KSP not only confirmed on appeal that investigation of the abduction is active/ongoing, but explained in sufficient detail the recent efforts of the investigating officer, thereby satisfying its burden of proof, this office has no basis upon which to find that KSP violated the Open Records Act under existing legal authority interpreting KRS 17.150(2), 2 incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and KRS 61.878(1)(h), including 07-ORD-140 and the line of decisions upon which it was based.
Upon receiving notification of Ms. Teague's appeal from this office, Paralegal Consultant Emily M. Perkins defended the agency's position as follows:
The Office of the Attorney General has long held that 'Numerous other opinions of this office have concluded that investigative files and reports maintained by criminal justice agencies are not subject to public inspection until after prosecution is completed or the investigation has been concluded and a determination has been made not to prosecute the matter. See, for example, OAGs 87-15 and 87-35. . .' While it is undisputed that there has been considerable time between the date of the crime and the present date, as of this date prosecution has not been declined and the investigation remains active and ongoing. Consequently, it is imperative that [KSP] maintains its reports, preserve evidence, and preserve the chain of custody for evidence in the event that criminal charges are brought and proceed to trial. Thus, the provisions of KRS 17.150(2) and 61.878(1)(h), as well as Open Records Decisions 04-ORD-041, 04-ORD-114, 04-ORD-234, 05-ORD-232, 05-ORD-246, 05-ORD-251, 06-ORD-203, 07-ORD-095, 07-ORD-140, 07-ORD-247, 08-ORD-247, 09-ORD-133, and 11-ORD-141, certainly apply.
There is no legal authority that this office is aware of that states that simply because an investigation has been pending for a number of years that it becomes subject to disclosure merely due to the lapse of time. The KSP has not just labeled this case as 'open' for technical purposes; the investigation is active. . . . 3
To further substantiate this assertion, KSP attached the affidavit of Sergeant Jackie Carver who is assigned to KSP Post 16 and serves as the Detective Sergeant. He confirmed that KSP Post 16 "has an open and ongoing investigation, identified as KSP case 16-95-1327, regarding missing person Heather Teague." Sgt. Carver also explained that KSP "is actively investigating this matter, including conducting witness interviews within the month of September 2012, requesting laboratory analysis on certain items of evidence in the case, revisiting and reanalyzing the abduction crime scene in September 2012, and other investigative steps." He reiterated that KSP "is not merely holding this investigation in open status to prevent public inspection of the case." Disclosure of any portion of the investigation, he continued, is "unwarranted at this time, as public disclosure of materials pertaining to this investigation would irreparably harm the KSP in securing prosecution for any criminal charges that may potentially be brought." Finally, Sgt. Carver advised that the detective assigned to this matter "has an open line of communication regarding this investigation and will follow up on any leads generated from any credible source." In light of this additional information regarding the current status of the investigation, this office affirms the agency's denial of Ms. Teague's request in accordance with existing legal authority.
When, as in this case, a public agency relies upon KRS 61.878(1)(h) in denying access to public records, the need for specificity is "particularly compelling." 00-ORD-196, p. 3. In construing KRS 61.878(1)(h), the Attorney General has repeatedly observed that "[i]n order to successfully raise this exception, a public agency must satisfy a three-part test." 95-ORD-95, p. 1. First, a public agency must establish that it is a law enforcement agency or a public agency involved in administrative adjudication. Id. Next, it must establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Id. 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. Id., pp. 1-2. Unlike any of the other exceptions, 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, pp. 2-3. See 00-ORD-196; 02-ORD-179; 03-ORD-015; 10-ORD-162; 11-ORD-069.
In
University of Kentucky v. Courier-Journal & Times Co., 830 S.W.2d 373 (Ky. 1992), the Kentucky Supreme Court implemented this legislative mandate, rejecting a claim by the University that records it compiled during the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h) because the University failed to satisfy the first part of the three-part test. Applying this analysis, the Attorney General has rejected public agencies' reliance upon KRS 61.878(1)(h) in a series of decisions. 4 In sum, the issue of whether a public agency has satisfied the requisite criteria to successfully invoke KRS 61.878(1)(h) has arisen in a variety of contexts, but the analysis remains unchanged. Given the statutory mandate of strict construction found at KRS 6l.871, and the explicit prohibition against using KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to KRS 61.884," a public agency can successfully invoke KRS 61.878(1)(h) only if it can demonstrate that it satisfies all three components of the test contained therein. 5 KSP is unquestionably a law enforcement agency and the only existing responsive public records were apparently compiled in the process of detecting statutory violations; accordingly, the only question is whether KSP has adequately demonstrated the harm that would result from disclosure of those records. Based upon the following, this office concludes that KSP has done so.
Unless exempted by other provisions of the Open Records Act, "public records exempted under [KRS 61.878(1)(h)] shall be open after enforcement action is completed or a decision is made to take no action." Similarly, KRS 17.150(2) provides that "[i]ntelligence 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." A showing of harm is not required to successfully invoke KRS 17.150(2) as the basis for denying access to records which fall into this category. 10-ORD-094, p. 8. Early on, the Attorney General analyzed the underlying purpose of KRS 17.150(2) and its "companion statute," KRS 61.878(1)(h), 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). More recently, this office 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. Significantly, both KRS 17.150(2) and KRS 61.878(1)(h) "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 (emphasis added). Based on a line of opinions dating back to 1976, affirmed in
Skaggs v. Redford, 822 S.W.2d 389 (Ky. 1992) and reaffirmed by the
Kentucky Supreme Court in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), this office has consistently recognized that investigative records may be withheld "so long as the possibility of . . . judicial proceedings in this case remains a significant prospect." Skaggs at 391. See 04-ORD-114; 05-ORD-246; 06-ORD-051; 06-ORD-190; 07-ORD-140; 11-ORD-195; 12-ORD-029.
In 04-ORD-041, this office was asked to determine whether KSP had violated the Act in denying a request submitted by John Yarbrough on behalf of Ms. Teague for "'all recordings, transcripts, and notes from all interviews, call-ins[,] reports, and leads received by Kentucky State Police during the period from August 25, 1995 to September 1, 1995 that led to the suspect Marvin Dill in the abduction of Heather Teague.'" In concluding that KSP had minimally satisfied its burden of proof relative to KRS 61.878(1)(h), this office concurred with Mr. Yarbrough "in his view that a public agency cannot indefinitely postpone access to investigative records by labeling an investigation ongoing, as evidenced by OAG 86-80," in which the Attorney General held that the agency had not satisfied its burden of proof in denying access to a file concerning a missing person case that had been classified as "'an open case (active or inactive as opposed to closed) for almost eight years.'" Id., pp. 7- 8. Three years later KSP denied the 2007 request made by attorney James (Chip) Adams II for "[a]ll records showing the Time and Location where the 911 call reporting the abduction of Heather Teague on August 26, 1995 was received," which culminated in 07-ORD-140, meaning the subject investigation had been ongoing for approximately twelve years. The question of whether KSP had violated the Act in denying his request on the bases of KRS 17.150(2) and 61.878(1)(h) was a close one in our view; however, this office was unwilling to substitute its judgment for that of KSP given that KSP had established that leads were being pursued. Because five more years have passed since 07-ORD-140 was rendered, Ms. Teague has questioned whether KSP can still properly withhold the records in dispute.
While the Attorney General has generally deferred to a law enforcement agency's classification of an investigation as inactive, active, or closed, fully recognizing that this office lacks authority to compel a public agency to close an investigation for Open Records purposes, the Attorney General has questioned a public agency's reliance on KRS 17.150(2) and 61.878(1)(h), and its classification of the subject investigation as open, "where several years have elapsed and the agency fails to provide an adequate explanation or otherwise meet its statutory burden of proof. " 06-ORD-265, p. 7. See OAG 86-80 (eight years); OAG 90-143 (one and one-half years); 02-ORD-20 (ten years); 06-ORD-265 (forty-one years). Underlying these decisions was the recognition that "[s]ecret police activity without some overriding justification is repugnant to the American system of government," OAG 80-54, p. 3, and that "when an investigation has been inactive for an inordinate period of time, the public's interest in seeing an offender brought to justice may have to yield to the public's right to review the conduct of the police in discharging their statutory duties." 06-ORD-265, p. 7.
In the latter decision, this office distinguished OAG 86-80, above, reasoning as follows:
First and foremost, the Division of Police has attempted to meet its statutory burden of proof relative to the invocation of KRS 17.150(2) and KRS 61.878(1)(h) by asserting that "release of an open homicide investigation before a review or a determination as to whether to reinvestigate takes place is premature and would compromise any reinvestigation based on the advancements in science and technology which were not available at the time of the crime." The proof it presents, in this regard, stands in marked contrast to the complete absence of proof in OAG 86-80. Second, and of nearly equal import, DNA and other forms of scientific testing had not been developed in 1986 when OAG 86-80 was issued. The potential for solving ostensibly cold cases was far more remote in the days before such testing. The Attorney General might not have been so quick to resolve the dispute in OAG 86-80 against the law enforcement agency if a concrete prospective law enforcement action, based on scientific testing, existed at the time and the agency had produced sufficient proof to this effect.
In Dickerson v. Department of Justice, 992 F.2d 1426 (6th Cir. 1993), the Sixth Circuit Court of Appeals affirmed the Department of Justice's denial of a 1989 request for investigative records relating to the 1975 disappearance of Jimmy Hoffa on the basis of 5 U.S.C. § 552(b)(7)(A), the Freedom of Information Act exception for "records or information compiled for law enforcement purposes . . . to the extent that . . . production . . . could reasonably be expected to interfere with enforcement proceedings." The court found highly persuasive the view expressed by the FBI official responsible for deciding whether to continue an investigation that there was "still a reasonable prospect of a prosecution being brought," Id. at 1432, and that FBI resources should be, and were being, devoted to the investigation. 6
The Hoffa case was some fourteen years old when the requester, Dickerson, submitted his request and eighteen years old when the Sixth Circuit issued its opinion in favor of the agency. The record on appeal demonstrated that continuing FBI efforts had been devoted to the investigation. The Cawein case is forty-one years old. The record on appeal is devoid of proof of continuing efforts to solve the case or of any progress to that end. Nevertheless, the Division of Police has committed itself to reviewing the Cawein case file before March 3, 2007, for purposes of determining if DNA testing, or other scientific testing, may yield evidence to be used in a concrete prospective law enforcement action.
Based upon the foregoing, this office found the Division had satisfied its burden of proof relative to invocation of KRS 17.150(2) and 61.878(1)(h) in asserting that disclosure of the file at that juncture would compromise any reinvestigation based on DNA and scientific testing. 7 Id., p. 9.
Here, Sgt. Carver has advised that KSP "is actively investigating this matter, including conducting witness interviews within the month of September 2012, requesting laboratory analysis on certain items of evidence in the case, revisiting and reanalyzing the abduction crime scene in September 2012, and other investigative steps." In other words, the record on appeal is not devoid of proof of continuing efforts to solve the case or any progress to that end. Because KSP has confirmed the current status of the investigation, and credibly explained the reasons for characterizing it as open/active, this office finds that KSP, unlike the agency in OAG 86-80, ultimately satisfied its burden of proof. It stands to reason that revealing more specifics regarding the steps taken, as in 06-ORD-265 and the Dickerson case referenced therein, would defeat the purpose for invoking those provisions. KSP has consistently asserted that public disclosure of any portion of the investigation remains "unwarranted at this time," as disclosure would "irreparably harm the KSP in securing prosecution for any criminal charges that may potentially be brought." While KSP cannot indefinitely postpone access to the requested investigative records by characterizing the investigation as open/active, it ultimately substantiated that characterization with adequate specificity in this case. Substituting our judgment for that of KSP on this issue would be inappropriate on the facts presented. Upon completion of the investigation or a determination not to prosecute, any investigative records which are responsive to Ms. Teague's request will be open for inspection unless they are specifically excluded from application of the Act by another statutory exception.
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:
Sarah TeagueEmily M. Perkins
Footnotes
Footnotes
1 Ms. Teague also questioned whether some records were sufficiently independent of the investigation to be accessible. In OAG 89-11, this office construed "records compiled in the process of detecting or investigating statutory or regulatory violations" to mean "those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process," and not records "which were 'segregated' in connection with an investigation" but "not made uniquely in a specific detection and investigation process." Id., p. 3. See 10-ORD-075. On appeal KSP acknowledged that the initial Kentucky Incident Based Reporting System (KyIBRS) reports currently generated are subject to disclosure in accordance with 09-ORD-205. However, such reports were not created in 1995 when the subject investigation was initiated. KSP correctly asserted that it cannot produce nonexistent records for inspection or copying. See 07-ORD-188; 07-ORD-190; 11-ORD-122.
2 In relevant part, KRS 17.150(2) provides:
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." However, portions of the records may be withheld from inspection if the inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in the records to be used in a prospective law enforcement action.
KRS 17.150(2) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which authorizes public agencies to withhold "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation[.]"
3 KSP also correctly asserted that a public agency is not statutorily required to honor a request for information as opposed to a request for an identifiable public record; accordingly, KSP declined to answer the related questions that Ms. Teague posed on appeal. Even if existing authority did not validate this position, any issues regarding those questions are not ripe for review given that Ms. Teague did not pose them in her original written request.
4 See, e.g., 94-ORD-35; 96-ORD-155; 97-ORD-129; 02-ORD-179; 05-ORD-178; 07-ORD-139.
5 The Kentucky Court of Appeals recently confirmed that a case-by-case approach is best and that a showing of the specific harm that would result from disclosure of the record is required for the agency to satisfy its burden of proof. In Cincinnati Enquirer v. City of Fort Thomas, S.W.3d, 2011 WL 5008308 (Ky. App.), the Court questioned our analysis in reviewing 09-ORD-104 (agency had "sufficiently, if briefly, explained the potential harm that would result from the release of the investigative file" and that harm was postulated on the possibility of remand for a retrial and harm to the prosecution from disclosure of records not utilized in the original trial) and the circuit court opinion affirming that decision. The Court determined that although records compiled by law enforcement agencies in the process of detecting or investigating statutory or regulatory violations are shielded from disclosure while avenues remain available for a post-conviction challenge of the sentence, not all investigative records are shielded. 12-ORD-004, p. 4. Specifically, the Court struggled with establishing "guidelines . . . about what constitutes 'harm' or 'premature release' of information," but recognized that "it is the burden of the denying agency to show that an exemption is applicable," concluding that the City failed to meet its burden for the most part. Id. at 5. The Court also determined, as indicated, that whether to release information contained in existing investigative records would be "harmful" or "premature" is "best decided on a case-by-case basis." Id.
6 KRS 61.878(1)(h) may be invoked only if disclosure "would" harm the agency, a more stringent standard than the "could" standard appearing in 5 U.S.C. § 552(b)(7)(A).
7 This office further held "that if the promised review concludes with a decision that DNA testing, or other scientific testing, is unavailing and will not be conducted, the Division may no longer rely on KRS 61.878(1)(h) and KRS 17.150(2) but must release the disputed records to [the requester] or assert some other statutorily recognized basis for denying access." Id. Given the inordinate passage of time (41 years), and the corresponding likelihood that the case would never be solved, the general statement of legislative policy found at KRS 61.871, and the specific limitations found at KRS 17.150(3), and echoed in KRS 61.878(1)(h), this office found "that the public's right to know how the Division, or its predecessor agency, executed its duty to investigate this highly publicized murder must be served, notwithstanding the fact that the case is considered 'open.'" Id.