Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in failing to state the harm caused by the release of investigative records and in failing to justify the refusal with specificity. We find that KSP initially violated the Open Records Act in failing to state the harm caused by the release of investigative records and in failing to justify the refusal with specificity, but subsequently cured those deficiencies on appeal.
Sam Aguiar, of Sam Aguiar Injury Lawyers, submitted an open records request to KSP on Feb. 10, 2016. Aguiar requested documents relating to "an auto accident which occurred on Peston Highway in Lebanon Junction, Kentucky at approximately 5:00 PM on December 1, 2015 (the police report relative to this matter is attached)." Aguiar specifically requested:
a. All 911 recordings
b. All photographs taken of the scene of and vehicles involved
c. All officer notes
d. All computer aided dispatch (CAD) notes
e. All body camera and dash camera video and audio
f. All CVE reports
g. All ECM downloads
h. The complete investigative file
KSP responded on Feb. 23, 2016, 1 stating that "this information is part of an investigation that is still open; 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 through the provisions of the Open Records Act until such time as prosecution is completed or declined."
Mike Burns, of Sam Aguiar Injury Lawyers, initiated this appeal on Mar. 23, 2016, on the grounds that:
KSP has not confirmed that the release of records would harm the agency or investigation in any way. Even if there is a risk of harm to the release of some records, KSP must release all documents that are not exempt and then assert a rational link between the nature of the withheld document and the alleged likely harm to the agency and investigation. . . .
Should your office determine that some items are in fact exempt, we still request that the agency be ordered to produce the remaining non-exempt items.
KSP responded to Aguiar's appeal on Mar. 18, 2016. KSP argued:
The records requested pertain to a police investigation that is still open and pending. No decision has yet been made by the Commonwealth's Attorney as to whether this case will be presented to the grand jury or when. It may be necessary to interview or re-interview witnesses and some of those persons are potential witnesses before the grand jury. Premature release of those records in a public forum could result in prejudice to the potential witnesses and has the potential to adversely color a witnesses [sic] recollection of the events. In accordance with KRS 17.150(2)(d), the KSP is not required to show "concrete risk of harm" as discussed in Ft. Thomas because the holding in that case does not apply to investigations in which no determination has been made regarding criminal processes.
Appellant also argues that the KSP should release "non-exempt" portions of the records. Ultimately, the KSP, during the initial investigative phases before a determination regarding prosecution has been made, is unable to determine if any of the agency records related to the investigation, to include dispatch logs, photographs, and other records, will be used as exhibits in any future pending criminal charges because that decision is up to the prosecutor and, therefore, all records related to the investigation are exempt from disclosure in accordance with KRS 17.150(2)(d). Hence, there are no "non-exempt" records until such time as prosecution has been completed or declined.
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. 2 KSP did not make any reference to the harm caused by the release of the records in its response. However, KSP did subsequently state the harm in its response to this 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. " KSP is correct that "there is no requirement of a showing of harm to invoke KRS 17.150(2)." 10-ORD-094. Instead, 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. " 3 KSP did not state the reasons to justify the refusal of inspection with specificity in its response to the request. However, KSP did provide at least some specificity in its response to this appeal. Accordingly, we find that KSP initially violated the Open Records Act in failing to state the harm caused by release of the records or failing to justify its refusal with specificity, but subsequently cured those deficiencies on appeal.
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.
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