Opinion
Opinion By: Jack Conway, Attorney General; Benjamin Long, Assistant Attorney General
Open Records Decision
Kenneth White initiated this appeal challenging the denial by the Kentucky State Police of his December 11, 2014 request for "a copy of all material in my file as it relates to case 02-CR-00095-02, Commonwealth v. Kenneth White ," including "a copy of all written documents, Police reports, Interview notes, Laboratory reports, Detective notes, any and all Cassette Tapes, DVDs, VCR Tapes." KSP received Mr. White's request on December 22. In a timely written response, Official Custodian of Records Emily M. Perkins advised Mr. White that information pertaining to KSP Case No. 11-02-0744 is part of an investigation that is still open; accordingly, your request is denied pursuant to KRS 17.150(2), "which excludes records to be used in potential prosecution from disclosure, 61.878(1)(l), which states that records made confidential by another Act of the General Assembly shall remain exempt from the Open Records Act, and 61.878(1)(h), which states that records of law enforcement agencies that may be used in potential prosecution are exempt from disclosure through the provisions of" the Act. Mr. White initiated this appeal by letter dated January 15, 2015, arguing that his case is twelve years old and that the two other individuals convicted of being his co-conspirators are also in prison.
Upon receiving notification of Mr. White's appeal from this office, Ms. Perkins reiterated the agency's position relative to KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l) and 61.878(1)(h). KSP further advised that "Appellant was charged and convicted of Murder of a Police Officer and sentenced to Life Imprisonment without Parole. Appellant's case has gone through several appeals, and there is a significant chance for additional proceedings up to and including trial proceedings." In addition, Post 11 Commander Captain Glenn Todd Dalton "swore that there is a significant chance for further proceedings, and that release of these records in a public manner could harm potential prosecution by disclosing information not previously made public." Ms. Perkins attached Captain Dalton's February 2, 2015 affidavit which, in relevant part, confirmed that KSP Post 11 London "has an open investigation, identified as KSP Post 11 case 11-02-0744, regard[ing] the premeditated murder of Pulaski County Sheriff Sam Catron." Captain Dalton further attested that Mr. White "was convicted of Murder of a Police Officer and sentenced to life imprisonment without the possibility of parole in December 2003." Due to the serious nature of the crime and sentence imposed, Captain Dalton attested, "the appeals process has been extensive, and there remains a significant likelihood of further proceedings that could include subsequent trial proceedings. Any production of the full investigation in a public forum may harm the ability of the prosecutors in future proceedings by disclosing information not previously made public."
This office has long recognized that 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. Applying this analysis, the Attorney General has rejected public agencies' reliance upon KRS 61.878(1)(h) in a series of decisions. See, e.g., 94-ORD-35; 96-ORD-155; 97-ORD-129; 02-ORD-179; 05-ORD-178; 07-ORD-139.
In
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Kentucky Supreme Court addressed in detail the "law enforcement exception" codified at KRS 61.878(1)(h). Prior to beginning a substantive analysis of the issues presented, the Supreme Court emphasized that a public agency bears the burden of proving "that any decision to withhold responsive records was justified under the Act." Id. at 848. The Court noted that "a police department's investigatory file is not categorically exempt from disclosure under the Open Records Act merely because it pertains to a prospective enforcement action. " Id. at 849. Indeed, the "plain terms" of the Act "do not provide for such a categorical exemption. " Id. In so holding, the Court expressly rejected the City's position that merely because the conviction of the individual whose investigative file was at issue remained subject to collateral challenge its entire investigative file was exempt. Id.
The Court further held that KRS 61.878(1)(h) is properly invoked "only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action." Id. at 851. The Court went on to say that such risk of harm "by definition, must be something more than a hypothetical or speculative concern." Id. at 851. "[T]he mere fact that an enforcement action remains prospective is [not] enough to establish that disclosure of anything from a law enforcement file constitutes 'harm' under the exemption. " Id. at 852 (overruling in part
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992)). The Court went on to note that a public agency should provide the requester and the court "with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release to permit the requester to dispute the claim and the court to assess it." Id. ; 14-ORD-154. [T]he law enforcement exemption cannot be invoked without at least that minimum degree of factual justification...." Id. Whether sufficient information has been presented here is debatable; however, a conclusive resolution of this question is unnecessary in light of recent precedent(s) of this office applying KRS 17.150(2). 1
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." The Attorney General has 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). This office later 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.
In 14-ORD-154, this office was asked to determine whether the Lakeside Park-Crestview Hills Police Authority violated the Open Records Act in denying a request for specified categories of investigative records pertaining to an individual submitted by said individual's attorney in the context of a motion to set aside a conviction due to ineffective assistance of counsel. Having quoted the language of KRS 61.878(1)(h), and summarized the analysis found in City of Fort Thomas , the Attorney General observed that KRS 17.150(2)(d) does not require a showing of harm, but KRS 17.150(3) does provide that, "[w]hen a demand for the inspection of the records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity. " 14-ORD-154, p. 3. Like KRS 61.878(1)(h), this provision further mandates that exemptions codified at KRS 17.150(2) "shall not be used by the custodian of records to delay or impede the exercise of rights granted by this section." Id.
This office concluded that no showing of harm was demonstrated to justify the agency's invocation of KRS 61.878(1)(h) relative to most of the requested investigative records. However, the Attorney General went on to find that its denial was appropriate under KRS 17.150, reasoning as follows:
Here, the Police Authority explain that there is an ongoing law enforcement action, under RCr 11.42. These actions are prospective actions under both Skaggs and Ft. Thomas . While evidence of a prospective action is insufficient to demonstrate harm under the Ft. Thomas case, that case did not address KRS 17.150. Rather, Ft. Thomas addressed the explicit showing of harm requirement in KRS 61.878(l). As KRS 17.150 does not include such a showing of harm, the canon of statutory interpretation known as the plain meaning rule requires the statute be read without a harm element. See Caminetti v. U.S., 242 U.S. 470 (1917) ("It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."). Accordingly, KRS 17.150 does not require the agency to demonstrate a showing of harm. It merely requires the agency to provide a specific reason for withholding the records. KRS 17.150, therefore, makes the records at issue exempt from disclosure until there is no prospective law enforcement action, so long as the agency specifies what that action is or could be. Having specified the nature of the prospective law enforcement action here, the agency properly withheld the responsive records under KRS 17.150.
14-ORD-154, pp. 4-5. Likewise, in 14-ORD-228, p. 4, this office determined that KSP properly withheld responsive records where it specified that the records were "part of an open and ongoing investigation" and that "prosecution has not been declined." In the instant matter, KSP similarly specified that an ongoing investigation exists and noted a significant likelihood of further proceedings that could include subsequent trial proceedings. Thus, in accordance with this office's determinations in 14-ORD-154 and 14-ORD-228, we find that KSP has justified its denial on the basis of KRS 17.150.
Either party may appeal this decision by initiating action in the appropriate circuit court under 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.
Footnotes
Footnotes
1 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.