Opinion
Opinion By: Jack Conway,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Kenneth C. Human appeals the Bourbon County Sheriff's Office's handling of his July 9, 2015, request for access to "the entire investigative file including photographs, audio recordings or video" from a fatal accident that occurred September 16, 2014. We affirm the denial of the request based on the nonexistence of the record sought but find that the office's handling of the request was procedurally deficient.
Mr. Human, and his associates in the law firm of Bubalo, Goode, Sales, & Bliss, had previously directed their open records requests to the Paris Police Department. Following submission of three requests to the department, which resulted in the April 24, 2015, disclosure of one or more responsive records, the police department notified Mr. Human that it had contacted the accident reconstructionist, Deputy Clinton Graves, an employee of the Bourbon County Sheriff's Office, to ascertain the status of his reconstruction. Deputy Graves advised the department that the accident "is still an open investigation which is still being constructed. " On July 9, Mr. Human submitted an open records request to Deputy Graves. Noting that his associate spoke to Deputy Graves on April 27, and that Deputy Graves indicated that he "hoped" to complete the reconstruction "within 3-4 weeks," Mr. Human asked that Deputy Graves "contact [him] for the status on completion of the investigation or the final report." Having received no written response from Deputy Graves, Mr. Human initiated this appeal.
In his appeal, Mr. Human alleges that the Sheriff's Office "effectively denied" his request based on its failure to respond, orally or in writing, to his July 9 request. The Sheriff's Office responded, through counsel, that Deputy Graves "is in the process of completing a reconstruction . . . [but] has not completed said reconstruction. " Citing KRS 61.878(1)(i) and (j), as interpreted in University of Louisville v. Sharp, 416 S.W.3d 313 (Ky. App. 2013), counsel asserted that "the Bourbon County Sheriff's Office and/or the Paris Police are not required to provide any preliminary accident reconstruction report until the accident reconstruction report is complete and final." We address the actions of the Bourbon County Sheriff's Office only 1 and find that, although that office erred in failing to issue a timely written response to Mr. Human's July 9 open records request, it did not improperly deny him access to a record or records that, as of the dates of his request and appeal, had not been completed.
Much of the confusion in this appeal arises from the failure of the parties to identify the investigating agency. Mr. Human and his associates originally submitted their requests to the Paris Police Department, which did not dispute its status as the investigating agency, and which provided them with some responsive records. Nor did the Paris Police Department give any indication that the accident was being jointly investigated. On April 24, the department's records custodian advised Mr. Human that she had "spoke [n] with Deputy Clinton Graves with the Bourbon County Sheriff's Department, who is the accident reconstructionist for the incident," and that Deputy Graves stated that the accident "is still being [re]constructed. "
Mr. Human submitted an additional request to the Paris Police Department before sending his first request directly to Deputy Graves in the Sheriff's Office. Deputy Graves may or may not be the official custodian of records 2 for the Sheriff's Office. Although he spoke to Mr. Human, or his associate, at least once, he lacked authority to act for the Sheriff's Office in responding to an open records request unless he is the office's official custodian of records or the office's official custodian delegated authority to him under KRS 61.880(1). 3 If he is not official custodian for the office, or authority was not delegated to him, Deputy Graves was expected to immediately forward the open records request to the official custodian of records for the Sheriff's Office. 4 Alternatively, Deputy Graves was expected to immediately notify Mr. Human, in writing that he was not the official custodian of the Sheriff's Office's records and provide the name and location of the office's official custodian per KRS 61.872(4). 5 Ultimately, the confusion surrounding this appeal could have been eliminated by a single written response which, as noted, is required by KRS 61.880(1). The failure to issue such a timely written response constituted a violation of the Act.
The refusal to release an incomplete accident reconstruction report did not constitute a violation of the Act. In his April 27 telephone conversation with Mr. Human's associate, Deputy Graves expressed hope that he would complete the accident reconstruction in three to four weeks. He was unable to do so. Nothing in the Open Records Act required Deputy Graves to achieve this goal. At the time of the request and appeal, the report was, at best, an incomplete draft the withholding of which was authorized by KRS 61.878(1)(i) and (j). Those exceptions to the Open Records Act permit public agencies to withhold:
(i) Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
As the Kentucky Court of Appeal observed, in a 2013 opinion construing the "preliminary documents" exceptions, "piecemeal disclosure along the path of the decision-making process is not mandatory." University of Louisville v. Sharp, 416 S.W.3d 313, 315 (Ky. App. 2013) citing Ky. State Bd. Med. Licensure v. Courier-Journal & Louisville Times Co., 663 S.W.2d 953, 956 (Ky. App. 1983) for the proposition that "a complaint filed with the medical licensure board, and records from the subsequent investigation, are exempt from disclosure until the final determination of the board regarding the license;" and Palmer v. Driggers, 60 S.W.3d 591, 596 (Ky. App. 2001) for the proposition that "a police officer's resignation during an ongoing investigation is considered a final action, since the effect of the resignation was to end the city's disciplinary proceedings against the officer, and thus the complaint and the investigation records lose their preliminary status and must be disclosed." The issues presented in this appeal fall squarely with this analysis. Neither Deputy Graves nor the Bourbon County Police Department is required to release a report, or investigative records that support the report, before it is finalized.
Either party may appeal this decision 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.
Footnotes
Footnotes
1 Although Mr. Human attaches copies of his open records correspondence with the Paris Police Department, his appeal focuses on the actions of the Bourbon County Sheriff's Office.
2 KRS 61.870(5) defines "official custodian" as "the chief administrative officer or any other officer or employee of a public agency who is responsible for the maintenance, care and keeping of public records, regardless of whether such records are in his actual personal custody and control[.]" KRS 61.870(6) defines "custodian" as "the official custodian or any authorized person having personal custody and control of public records[.]" KRS 61.876(1)(b), as well as other provisions of the Open Records Act, contemplate the appointment and identification of the official custodian of records.
3 KRS 61.880(1) provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action . (Emphasis added.)
4 If the Sheriff's Department was not the investigating agency, and Deputy Graves was acting as accident reconstructionist as a courtesy to the Paris Police Department, its authority to disclose investigative records of a separate agency is questionable. At a minimum, the Sheriff's Office would be obligated to consult with the Police Department before releasing any records it had come into possession of in this limited role.
5 KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.