Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Kentucky State Police ("KSP") violated the Open Records Act in failing to state the harm caused to the agency in releasing laboratory files that are part of an ongoing prosecution, and in failing to justify withholding the reports with specificity. We find that KSP violated the Open Records Act in failing to state the harm caused to the agency in releasing laboratory files that are part of an ongoing prosecution, and in failing to justify withholding the reports with specificity.
Ameer Mabjish submitted an open records request to KSP on Feb. 2, 2016. Mabjish requested "a complete copy of the case file including without limitation all forensic data and notes in Laboratory case number 15-N-03516 (Agency case number 2015-00049384) completed by Forensic Scientist Specialist, Susan Vanlandingham, testing in which [sic] was completed on November 16, 2015." KSP responded on Feb. 5, 2016, stating:
This information pertains to a criminal investigation by the Covington Police Department that is pending prosecution before the Kenton Circuit Court; accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h), which state that records of law enforcement agencies are exempt from disclosure . . . until such times as prosecution is completed or declined. Further, 09-ORD-143 states . . . that 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 the records will harm the ongoing investigation of the other agency.
Mabjish initiated this appeal, which was received on Feb. 18, 2016. Mabjish argued that "the statement of denial and the reasons given for said denial fail to articulate any sort of harm, or potential for harm if these records are disclosed, " relying on City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). KSP responded to the appeal, stating that:
The records requested pertain to a police investigation that is still open and pending in Kenton Circuit Court. Mr. Mabjish is attempting to obtain records through an open records request which should have been sought through criminal discovery from the Kentucky [sic] County Commonwealth's Attorney. Appellant relies almost entirely on City of Fort Thomas . . . . But that reliance is misplaced in that that case involved a criminal defendant whose case was final.
. . . In addition, Commonwealth v. House, 295 S.W.3d 825 (Ky. 2009) made it clear that a subpoena should not be used to avoid proper discovery process. An open records request would be subject to the same restrictions.
KRS 61.878(1)(h) exempts from the Open Records Act "records of law enforcement agencies . . . 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. " In City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the court held that "the law enforcement exemption is appropriately 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. KSP did not make any reference to the harm caused by the release of the records either in its response to the request or to the appeal. KRS 17.150(2) provides that "intelligence and investigative reports maintained by criminal justice agencies . . . . may be withheld from inspection if the inspection would disclose . . . (d) information contained in the records to be used in a prospective law enforcement action. However, KRS 17.150(3) provides that "when a demand for the inspection of the records is refused by the custodian of the record, the burden shall be upon the custodian to justify the refusal of inspection with specificity. " KSP did not state the reasons to justify the refusal of inspection with specificity in its response to the request or to the appeal.
KSP's argument that Mabjish is attempting to obtain records through the Open Records Act that he should have obtained through discovery is unavailing:
Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. . . .
. . . Thus, although the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, he has not recognized the right of a public agency to deny access to public records on these grounds.
03-ORD-226. Accordingly, in failing to specify the harm that would be caused by the release of laboratory reports, and failing to justify refusal of inspection with specificity, KSP 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.