Opinion
Opinion By: Jack Conway,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Florence ("City") violated the Open Records Act in withholding police incident reports. We find that the City violated the Open Records Act in withholding police incident reports.
On Dec. 23, 2014, Enquirer Media reporter Amanda Van Benschoten submitted an open records request by email to the City. Van Benschoten requested "access to and a copy of the incident report(s) from the Dec. 22 robbery of the Magnuson Hotel on Holiday Place and the subsequent pursuit by Florence Police of the suspect." The City responded on Dec. 29, 2014. The City stated that "the Florence Police incident report and related documents are exempt from inspection . . . . These records are part of a law enforcement investigation and are preliminary documents related to an ongoing investigation. As such, they are exempt from inspection under KRS 61.878(1) (h), (i), and (j)."
Enquirer Media initiated this appeal on Jan 23, 2015. Enquirer Media stated that "the investigation of the robbery at Manguson [sic] hotel was completed by the City. Kentucky State Police is handling the investigation into the shooting of Mr. Todd, not the City." Enquirer Media argued that "as a preliminary matter, the City violated KRS 61.880(1) and KRS 61.880(2)(c) by not meeting its burden of providing an explanation as to how the exemptions it invoked applied to the incident report(s) sought." Enquirer Media also argued that "the exemptions invoked by the City simply do not apply to the police incident reports at issue . . . . police incident reports, as opposed to investigative files, are not generally exempt from disclosure. " Enquirer Media further argued that "even if the incident report were part of an investigative file . . . the City also failed to meet its burden for withholding the record under KRS 61.878(1)(h), because it did not state any harm that would result from its disclosure. " Additionally, Enquirer Media argued that "it is not the City's investigation that is open. Rather, the City's investigation into the robbery ended when the suspect was fatally wounded. . . . The report loses its exempt status under KRS 61.878(1)(h) once the robbery suspect could no longer be apprehended." In addition, Enquirer Media argued that "the City also invoked the exemption under KRS 61.878(1)(i) and (j) . . . . The City provides no explanation as to how these exemptions apply to the incident report(s) at issue, but again, merely states that the investigation is open."
The City responded on Feb. 2, 2015. The City stated:
The Florence Police incident report of the robbery and pursuit, which is the subject of the Enquirer's open records request was requested by and supplied to the Kentucky State Police. Thus at the time of the Enquirer's request that incident report was part of an ongoing investigation being conducted by the state police.
The Florence Police Department investigatory file also remains open because the State Police have not completed their investigation and may request more information.
. . . .
This would appear to be a matter of first impression in ORA case law. Here the requestor is seeking information which has been forwarded to another agency of wider jurisdiction and made a part of that agency's continuing investigation. . . . If portions of the State Police investigation, which would likely be exempt from a direct ORA request to that agency, can be obtained from another agency who supplied that information to the State Police, then the purpose of the legislature in creating the law enforcement continuing investigation protections would be frustrated.
Reliance by the Enquirer on the case of City of Ft. Thomas v. Enquirer, Ky., 406 S.W.3d 842 (2013) is misplaced because the investigation to be harmed is that of the Kentucky State Police rather than the City.
Enquirer Media argues that the City did not provide an explanation as to how the exemptions applied to the requested incident reports. KRS 61.880(1) provides that "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. " KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. Ct. App. 1996). However, this "does not mean that the agency is obliged in all cases to justify non-disclosure on a line-by-line or document-by-document basis." City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013). "The agency's explanation must be detailed enough to permit the court to assess its claim and the opposing party to challenge it." Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013). Here, the documents at issue are few and easily identifiable, and Enquirer Media has sufficient information to assess the claims of exemption and challenge them. Accordingly, the City did not violate the Open Records Act in providing a brief explanation of how the exception applies to the record withheld.
Regarding whether the City properly invoked the law enforcement exception, KRS 61.878(1)(h) exempts from the Open Records Act:
Records of law enforcement agencies . . . 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 . . . . 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 . . . .
Records of law enforcement agencies are exempt if the disclosure of the information would harm the agency by premature release of information to be used in a prospective law enforcement action. "To invoke the law enforcement exemption . . . the agency must show (1) that the records to be withheld were compiled for law enforcement purposes; (2) that a law enforcement action is prospective; and (3) that premature release of the records would harm the agency in some articulable way." Fort Thomas, 406 S.W.3d at 850.
Enquirer Media argues that the City's investigation is now closed because the suspect was fatally wounded, while the City claims that the investigation is still open because it may need to provide information to the Kentucky State Police. "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 . . . ." 12-ORD-098. While we have questioned an agency's classification of an 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," id ., the events in question happened only one month before this appeal was filed. We will not override a determination by an agency that an investigation is open after only one month. See, e.g ., 05-ORD-058 ("The Attorney General concluded that the incident which prompted the investigation occurred two months before the records request was submitted, and that this office could not 'say how long the police department should consider the case inactive before declaring it closed'"). Accordingly, the City did not violate the Open Records Act in continuing to classify the investigation as active and ongoing one month after the incident.
Regarding whether the City met its burden to establish the law enforcement exception, "the Attorney General has consistently held that police incident reports, as opposed to investigative files, are not generally exempt from disclosure. " 09-ORD-205; 05-ORD-003. See also 08-ORD-105 ("While it is true that investigative records and reports 'are nearly always withheld from public inspection . . . ,' this analysis has not been applied to incident reports, and certainly not in the absence of a particularized showing of harm resulting from premature disclosure of any portion of the incident report withheld" ). "Nevertheless . . . portions of such records may be redacted by a law enforcement agency if the agency can articulate a basis for partial nondisclosure in terms of the requirements of one or more of the exceptions to the Open Records Act. " 05-ORD-003. The law enforcement exemption is appropriately invoked "only when the agency can articulate a factual basis for applying it . . . when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern." Fort Thomas, 406 S.W.3d at 851. Here, the City has done nothing more than articulate a hypothetical and speculative concern, and has not established a concrete harm. "The burden of establishing that an exception applies rests upon the agency resisting disclosure. " Id. at 849; KRS 61.882(3). Accordingly, we find that the City has not met its burden to justify withholding the police incident report under KRS 61.878(1)(h).
The City argues that it does not have the burden because the investigation is being conducted by the state police and not the City. "There is no specific exception to the Open Records Act that authorizes a public agency to withhold public records . . . because access to the records may be obtained from another public agency, even if the requested records might more appropriately or more easily be obtained from that other public agency. " 12-ORD-215. In 99-ORD-143, we addressed the procedures used when the same record is possessed or used by multiple agencies:
Where there is concurrent jurisdiction between two agencies, or two agencies have an interest in the matter being investigated, 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. . . . In such cases, however, the requirements codified at KRS 61.878(1)(h) are not relaxed, and it is incumbent on the agency resisting disclosure of the requested records to "provide particular and detailed information" and to articulate the basis for denying access to the specific documents requested in terms of the requirements of that exemption.
Id .; see also 03-ORD-042. An agency can assert an exemption on the behalf of another agency; however, the agency asserting the exemption on behalf of another agency must still meet the requirements to assert the exemption. The burden is on the agency asserting the exemption on behalf of the other agency, and not on the other agency. "Even if the disclosure of records by one agency . . . can effect a waiver of another agency's . . . right to assert an exemption, it is not the obligation of the second agency to discover that waiver or to make inquiry as to its scope." Fort Thomas, 406 S.W.3d at 855. Although the City can assert exemptions on behalf of the Kentucky State Police, the burden remains on the City to properly assert those exemptions. The City here did not meet its burden to assert the law enforcement exemption on behalf of the Kentucky State Police.
Regarding whether the incident reports are preliminary documents under KRS 61.878(1)(i) and (j), KRS 61.878(1)(i) exempts from the Open Records Act "preliminary drafts, notes," and KRS 61.878(1)(j) exempts "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." In 99-ORD-28, we addressed whether police incident reports constitute preliminary documents:
Police incident reports cannot be characterized as correspondence, preliminary drafts, or recommendations or preliminary memoranda in which opinions are expressed. These reports generally do not contain preliminary recommendations, opinions, or policy formulations. Simply stated, such records are not "subjective expression[s] of opinion but [are] objective report[s] of? fact."
Id .; see also 04-ORD-188 ("'incident reports contain an objective report of fact. As such, they cannot be characterized as . . . . 'a brief record, especially one written down to aid the memory' or 'a tentative version, sketch, or outline of a formal and final written product'"). Police incident reports are final documents which are reports of fact, and not preliminary documents. Accordingly, the City did not properly assert the preliminary documents exceptions.
The City did not meet its burden to demonstrate the harm that would result from the release of information in order to invoke the law enforcement exception, either on its own behalf or on behalf of the Kentucky State Police, and improperly invoked the preliminary documents exceptions. Accordingly, in failing to provide any incident reports from the Dec. 22 robbery of the Magnuson Hotel on Holiday Place and the subsequent pursuit by Florence Police of the suspect, the City Violated the Open Records Act.
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 proceedings.