Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Independence ("Independence") violated the Open Records Act in withholding a police incident report and in not justifying that withholding with specificity. We find that Independence substantively and procedurally violated the Open Records Act in withholding an investigative report and in failing to justify withholding with specificity.
The Cincinnati Enquirer ("the Enquirer") submitted an Open Records Request to Independence by email to Independence on Feb. 4, 2016. The Enquirer requested "the Incident Report related to Joseph Niemeyer's current charges of rape, sodomy and sexual abuse." Independence responded on Feb. 4, 2016 by attaching a press release and stating "this is all that is available." The Enquirer replied, asking "why is the incident report unavailable?" Independence replied, "as stated on the official press release form since the case is still under investigation there is nothing else available." The Enquirer replied that "under Kentucky law, the Independence Police Department cannot withhold the entire incident report . . . . Police agencies are required to provide the first couple of pages, which contain the basic information about the incident. Agencies can only withhold the narrative portion if they give an explanation about the harm in producing it." 1 Independence replied on Feb. 5, 2016 that "your open records request is denied pursuant to KRS 61.878(1)(L) and KRS 17.150(2)(d) because the materials requested contain information that will be used in a prospective law enforcement action. Once the prosecution has completed or a decision not to prosecute has been made, the materials will become available for public inspection. "
The Enquirer initiated this appeal on Feb. 16, 2016. The Enquirer argued that Independence "did not articulate with proper specificity its basis for withholding the entire incident report under KRS 17.150(2)(d) . . . . KRS 17.150(3) puts the burden on the agency to specifically state why the records will not be made available to the public . . . ." The Enquirer further argued that this office has held "that an incident report is not exempt under KRS 17.150(2), nor any portion thereof with the exception of the identity of victims to sexual offenses," citing 08-ORD-146 and 08-ORD-105. Independence responded on Mar. 8, 2016, arguing that "KRS 17.150(2)(d) eliminates the need for a police agency to rely upon KRS 61.878(1)(h) and supply all of the justification required by the three-part test . . .in the City of Fort Thomas v. Enquirer case," citing to "15-ORD-123 involving properly withholding 911 calls and dispatch records under KRS 17.150(2)(d) and KRS 61.878.(1)(1)." The Enquirer replied on Mar. 11, 2016, arguing that "an incident report by definition does not fall under KRS 17.150(2), because it is neither an intelligence nor investigative report." The Enquirer further argued that "the city's explanation is speculative, at best, and fails to provide any specificity as to what information in the incident report will be 'used in a prospective law enforcement action. '"
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. 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. " "The Attorney General has consistently held that police incident reports, as opposed to investigative files, are not generally exempt from disclosure." 15-ORD-038. "Some records found in, or appended to, an investigative file, such as a uniform offense report, or incident report, do not enjoy absolute protection under . . . KRS 17.150(2) while an investigation is proceeding or a case is otherwise open." 05-ORD-211 n. 3. "If a police department feels it necessary to withhold certain items from public inspection in order to protect a police officer or an informant, it may do so under KRS 17.150 but the burden is upon the custodian to justify the refusal with specificity. KRS 17.150(3)." 99-ORD-28. Here, Independence made no attempt to justify withholding the incident report with any specificity. 2 In doing so, Independence substantively and procedurally violated the Open Records Act in withholding an incident report, and in failing to justify withholding that report with specificity. Independence is required to produce the incident report. It may redact any exempt information from the incident report under KRS 61.878(4), but must justify such redactions with specificity.
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.
Footnotes
Footnotes