Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Jason McGee appeals the Department of Kentucky State Police's denial of his January 7, 2016, requests for two records sets. Mr. McGee is an attorney representing an individual who was charged with DUI. His first appeal, Log Number 201600058, arises from KSP's denial of his request for a copy of "records pertaining to all approved traffic safety checkpoints for Ohio County, Kentucky (Post 16) on August 13, 2015 . . . [including] any information regarding locations, times, durations, procedures, staffing, supervisors, approval and media announcements for these checkpoints. " (Emphasis added.) Relying on KRS 17.150(2) and KRS 61.878(1)(h), KSP denied this request on January 13, 2016, advising Mr. McGee that the requested records "relate[] to a matters [sic] pending prosecution before the Ohio District Court." Mr. McGee's second appeal, Log Number 201600060, arises from KSP's denial of his request for a copy of "records pertaining to all approved traffic safety checkpoints for Ohio County, Kentucky (Post 16) on October 9, 2015 . . . [including] any information regarding locations, times, durations, procedures, staff, supervisors, approval and media announcements for these checkpoints. " These appeals are consolidated for purposes of review.
Following receipt of notification of Mr. McGee's open records appeals, KSP responded to Log Number 201600058 as follows:
[T]he records requested pertain to a police investigation that is still open and pending. There was an arrest made as a result of the traffic safety checkpoint for Driving Under the Influence. That case is still pending in Ohio District Court. The Office of Public Advocacy is attempting to obtain records through an open records request which should have been sought through criminal discovery from the Ohio County Attorney.
KSP again invoked KRS 17.150(2) and KRS 61.878(1)(h) in support of its denial of this request.
With reference to Log Number 201600060, KSP advised:
After the appeal 1 was filed this office checked with KSP Post 16 in Henderson regarding any traffic safety checkpoint conducted in Ohio County on October 9, 2015. There were no arrests made at a traffic safety checkpoint on October 9, 2015 and therefore there are no records in response to the request.
KSP asked that Log Number 201600060 be dismissed.
On March 3, 2016, the Office of the Attorney General requested additional documentation from KSP, pursuant to KRS 61.880(2)(c), 2 to facilitate our review of the issues on appeal. From KSP's responses, we learned the following:
1. Citing KRS 61.878(1)(j) 3 for the first time, KSP did not "attempt to retrieve or review any records relating to the October 9 traffic safety checkpoint in Ohio County because no arrests were made" and "all such records would have been preliminary." KSP did not respond to our request that it "advise us whether [it] attempted to locate not only arrest records but also records relating to 'locations, time, duration, procedures, staffing, supervisors, approval, and medical announcements' for the August 13, and October 9, 2015, checkpoints, " whether responsive records were withheld, and, if so, on what basis.
2. With reference to our request that KSP describe the withheld records and how premature disclosure of the records would harm KSP's law enforcement action, KSP responded:
KSP did not indicate whether records answering this description were actually withheld and, if so, the exception authorizing the withholding. Instead, it described, in conditional language, what records "would" exist, giving no indication whether such records were, in fact, located and withheld. KSP did not describe any harm to the enforcement action resulting from premature disclosure of the records that "would" exist.
Given three opportunities to substantiate its action, 4 KSP did not meet its burden of proof.
The presence of litigation, in this case criminal prosecution in the Ohio District Court, and the availability of records through discovery, does not relieve a public agency of its open records duties. In a line of opinions/decisions dating back to 1982, the Attorney General has recognized that a litigant, or an attorney representing a litigant, "stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of litigation provides no reason to grant or deny his request to inspect public records. " OAG 82-169, p. 2. Several years later, we reaffirmed this position noting that the presence of litigation "should not operate to prevent inspection of public records since separate statutory grounds for inspection have been provided by the General Assembly. No exceptions to the general rules regarding inspection are provided for denying inspection of public records on the grounds that litigation is either contemplated or in process." OAG 89-53, p. 4; accord, OAG 89-65; 95-ORD-27; 97-ORD-98; 11-ORD-108.
In 1992 the General Assembly codified this principal as it relates to civil litigation by enacting KRS 61.878(1) which provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery [.]
The courts subsequently parsed this language as follows:
In evaluating an open records request, the test is as follows. If the requested materials are not specifically excluded from disclosure (under KRS 61.878(1)(a)-(n), or other applicable statutes), then the public agency must provide the materials. If one of the fourteen exemptions applies, then the public agency should deny the request. However, a court of competent jurisdiction, upon request, can nevertheless grant disclosure of any document the agency refused to produce, with one qualification: if the document "pertain[s] to civil litigation" the court cannot order disclosure "beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery. " Even though the proceeding in the case before us is in the nature of an administrative action rather than a civil action, the agency would apply the same test and any agency denial would have to be based on a statutory or other legal exclusion. 5
Dept. of Revenue v. Wyrick, 323 S.W.3d 710, 714 (Ky. 2010). The Court thus reaffirmed an earlier opinion determining that "the gist of . . . [KRS 61.878(1)] is not to terminate a person's right to use an open records request during litigation, but to limit a court on an open records request on excluded records , to those records that could be authorized through a court order on a request for discovery under the Rules of Civil Procedure governing pre-trial discovery. "
Kentucky Lottery Corp. v. Stewart, 41 S.W.3d 860, 863 (Ky. App. 2001). We find KSP's argument that Mr. McGee could have, and should have, obtained these records through discovery unpersuasive.
Our review of the propriety of KSP's invocation of KRS 61.878(1)(h) and (j) and KRS 17.150(2) is impeded by KSP's omission of any description of responsive records located, retrieved, reviewed, and released or withheld. KSP's response is premised on the belief that Mr. McGee requested only arrest records. His request was broader in scope, seeking "records pertaining to all approved traffic safety checkpoints for Ohio County (Post 16)" on August 13, and October 9, 2015, "including information regarding locations, times, duration, procedures, staffing, supervisors, approval, and media announcements. " Having determined that KSP made no arrest at the October 9 checkpoint, KSP states that it did not "attempt to review any records" on the grounds that "all such records would have been preliminary." Records generated before the checkpoint was conducted were not generated in anticipation of the arrest, but, instead, in anticipation of the checkpoint. Forfeiture of their protection under KRS 61.878(1)(j) did not turn on the execution of an arrest. We find no support in the law for this position.
In
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013), the Kentucky Supreme Court declared that a public agency denying access to records on a document-by-document basis, or on the basis of assignment to "meaningful [records] categories," must identify and review its responsive records [and] release any that are not exempt." KSP did not discharge this duty in its initial response per KRS 61.880(1), its supplemental response per 40 KAR 1:030 Section 2, or its responses to our KRS 61.880(2)(c) request for additional information. To date, KSP has not identified the records released or the records withheld.
"The agency . . . bears the burden of proof . . . and what it must prove is that any decisions to withhold responsive records was justified under the Act." City of Ft. Thomas, 406 S.W.3d at 848, citing Bowling, 172 S.W.3d 333. KSP failed to articulate the harm associated with premature disclosure of traffic safety checkpoint records, per KRS 61.878(1)(h), and the specific reason for refusing inspection of traffic safety checkpoint records, per KRS 17.150(2). In its initial denial, KSP stated that "[t]his information relates to matters pending prosecution before the Ohio District Court." In its supplemental response, KSP describes the pending prosecution as one related to a charge of driving under the influence. KSP did not explain how disclosure of records containing "information regarding locations, times, durations, procedures, starting supervisors, approval and media announcement" "pose[d] a concrete risk of harm to the agency in the prospective action," City of Ft. Thomas, 406 S.W.3d at 851, or "justify the refusal of inspection with specificity." KRS 17.150(2) General Order OM-E-4, Traffic Safety Checkpoints, a copy of which was provided to this office by KSP in response to our KRS 61.880(2)(c) request for additional documentation, declares in its introductory statement of policy that "[t]he intent of a traffic safety checkpoint is to improve highway safety through high visibility public safety activity," and its objectives include "establishing guidelines and procedures for the planning, authorization, and media notification of traffic safety checkpoints. " Thus, traffic safety checkpoints are high visibility activities that are announced to the media in advance. Compare, 99-ORD-83 (affirming Owensboro Police Department's denial of request for Crime Com computer program relating to formulated investigative strategies aimed at crime reduction in targeted but undisclosed geographic areas of the city). Absent clearer articulation of the concrete risk of harm to the enforcement action occasioned by premature release of the traffic safety checkpoint records, or specific justification for refusal of inspection of these records, we find that KSP improperly withheld records responsive to Mr. McGee's request.
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 We trust that KSP inadvertently used the term "appeal" when it meant "request." A search for responsive records must be conducted after the request is submitted and cannot be delayed until after an appeal is filed.
2 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
3 KRS 61.878(1)(j) authorizes nondisclosure of "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]"
4 KSP's first opportunity to meet its burden of proof occurred when it responded to Mr. McGee's requests pursuant to KRS 61.880(1). Its second opportunity to meet its burden of proof occurred when it was notified of Mr. McGee's appeal and given the opportunity to respond. 40 KAR 1:030 Section 2. Its third opportunity to meet its burden of proof occurred when this office requested additional documentation for substantiation. KRS 61.880(2)(c).
5 See also Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 33 (Ky. 2005) (conducting open records analysis of records that might have been obtained through discovery in a criminal prosecution).