Opinion
Opinion By: Andy Beshear,Attorney General;Amye L. Bensenhaver,Assistant Attorney General
Open Records Decision
Corbin News Journal reporter Dean Manning appeals the London-Laurel County 911 Center's denial of his April 7, 2016, request for "a copy of the recording of the 911 call and any follow-up communications with law enforcement or emergency personnel concerning the individual found dead at a residence on Robinson Creek Road in Lily on April 13, 2016. The 911 Center's Assistant Director responded to Mr. Manning's request on April 12, 2016, advising Mr. Manning that, after receiving the request, he contacted the investigating agency, the Laurel County Sheriff's Office, "for permission to release the information." The Assistant Director related that he spoke with Captain Chuck Johnson and that Captain Johnson advised him that "this is still an open investigation and that he cannot release the information at this time." Relying on
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), Mr. Manning subsequently initiated this appeal, asserting that "a public agency has the burden of showing . . . that premature release of the records would harm the agency in some articulable way." City of Ft. Thomas, 406 S.W.3d at 850. On May 4, 2016, this office notified the 911 Center that Mr. Manning had initiated an open records appeal and that it could respond to that appeal. 40 KAR 1:030 Section 2. The 911 Center did not, however, respond.
The London-Laurel County 911 Center violated KRS 61.880(1) in not responding to Mr. Manning's request. KRS 61.880(1) establishes the requirements for agency response to an open records request. It 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.) The 911 Center's April 12 response did not "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. " See
Edmondson v. Alig, 926 S.W.2d 856, 857 (Ky. App. 1996) (recognizing that "the language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request"). Although the 911 Center's response was issued within three business days of receipt, it did not satisfy the remaining legal requirements of KRS 61.880(1).
The 911 Center references "an open investigation" as the basis for denying Mr. Manning's request but provides no additional information. From this we can infer that the agency intended to assert KRS 61.878(1)(h) on behalf of the Laurel County Sheriff's Office. That exception authorizes public agencies to withhold:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations 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 or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action . . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884[.]
In City of Ft. Thomas v. Cincinnati Enquirer , above, the Kentucky Supreme Court analyzed this exception. To invoke KRS 61.878(1)(h), the Court observed, "the agency must show (1) that the records to be withheld were compiled for law enforcement purposes; (2) that a law enforcement action is prospective; and (3) that premature release of the records would harm the agency in some articulable way." City of Ft. Thomas, 406 S.W.3d at 850. Continuing, the Court declared 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. "A concrete risk, by definition, "the Court concluded, "must be something more than a hypothetical or speculative concern." Id.
Here, as in City of Ft. Thomas , above, the 911 Center contends "that to invoke the 'prospective action' prong of the law enforcement exemption [it] need show no more than an entire [record's] general relation to a possible enforcement action. " Id. at 850, 851. Like the Court in City of Ft. Thomas , above, we reject this contention. In the absence of any showing that "premature release of the record[] would harm the agency in some articulable way," we find that the 911 Center violated the Open Records Act in withholding the requested "911 call and any follow-up communications with law enforcement or emergency personnel concerning the individual found dead at a residence on Robinson Creek Road in Lily on April 3, 2016." Accord, 16-ORD-084 (law enforcement agency violated the Open Records Act in failing to state the harm caused to the agency in releasing records that are part of an ongoing prosecution); 16-ORD-085 (city substantively and procedurally violated the Act in withholding a police incident report without demonstrating harm); 16-ORD-086 (law enforcement agency violated the Act in failing to justify the harm that would result from the release of investigative records).
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.