Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Nelson County Sheriff's Department ("Department") violated the Kentucky Open Records Act in denying the June 7, 2016, request of Kentucky Standard Editor Forrest Berkshire "to inspect any documents associated with the Nelson County Sheriff's Office investigation into the shooting death of Derek Downs in 2009." Although Sheriff Ed Mattingly initially agreed to permit Mr. Berkshire to inspect or copy the subject investigation file, by letter dated June 8, 2016, Sheriff Mattingly notified Mr. Berkshire that he was denying the request per the verbal request of Commonwealth's Attorney Chip McKay on the basis of KRS 61.878(1)(h). Sheriff Mattingly further indicated that he had "since spoken with the lead investigator in the Wayne Unseld homicide investigation, Jason Woodson[, who] preferred that I did not release the records to you fearing that it could possibly jeopardize his case." After enforcement action is completed by the Bardstown Police Department, Sheriff Mattingly noted, or a decision is made to take no action, the records will be subject to disclosure.
In his June 9, 2016, letter of appeal, Mr. Berkshire advised that the Nelson County Sheriff's Department completed the investigation of the shooting death of Mr. Downs in 2009. According to Mr. Berkshire, the case against Michael Wayne Unseld, who shot Mr. Downs, was presented to a Nelson County Grand Jury, and it returned a no true bill in October 2009. Mr. Unseld died on or around June 4, 2016. Partially quoting KRS 61.878(1)(h)(providing that "public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action...."), Mr. Berkshire reiterated that the investigation by the Nelson County Sheriff's Department "has long been closed." Mr. Berkshire contended that Sheriff Mattingly's description of the harm that would result from premature disclosure of the records being sought was not "particular and detailed" enough to satisfy KRS 61.878(1)(h). 1
Upon receiving notification of Mr. Berkshire's appeal from this office, Sheriff Mattingly elaborated upon the Department's position. Sheriff Mattingly advised that the investigative records in dispute related to "the death of Derek Downs who was fatally shot in a hunting accident in 2009. The person who shot him was Wayne Unseld. Unfortunately, Mr. Unseld was murdered in Bardstown this month. The Bardstown Police are investigating Mr. Unseld's death." Following the death of Mr. Downs in 2009, Sheriff Mattingly continued, "Mr. Unseld was threatened by family of Mr. Downs." Accordingly, Sheriff Mattingly maintained it was "possible that the Downs investigation could contain information related to the Homicide of Unseld." Sheriff Mattingly emphasized that the investigation of Mr. Unseld's recent death remains open.
Neither the initial nor the supplemental response of the Department is a model of specificity. Compare 15-ORD-105. However, the unrefuted facts establish that Mr. Unseld was responsible for the death of Mr. Downs. The record on appeal contains no evidence to refute Sheriff Mattingly's assertion that Mr. Downs' family threatened Mr. Unseld. Both the Commonwealth's Attorney and the Bardstown Police Department asked the Nelson County Sheriff's Department to withhold the records. Notwithstanding the equivocal nature of the verbal request made by Officer Downs ("possibly jeopardize" ) or the lack of certainty that Sheriff Mattingly expressed, the Department minimally justified invocation of KRS 61.878(1)(h) on behalf of the law enforcement agency (Bardstown Police Department) currently investigating Mr. Unseld's recent death under the unique circumstances presented.
Resolution of this appeal turns on the application of KRS 61.878(1)(h), pursuant to which a public agency is authorized 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 Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 850 (Ky. 2013), the Kentucky Supreme Court examined in detail the "law enforcement exception" codified at KRS 61.878(1)(h), holding that in order to successfully invoke that exception "under the 'prospective action' prong," a public 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." Id. at 850.
Both the Nelson County Sheriff's Department and the Bardstown Police Department are law enforcement agencies. The Nelson County Sheriff's Department has confirmed that the Bardstown Police Department has an open and ongoing investigation of the circumstances which resulted in the June 2016 death of Mr. Unseld. The records being sought were unquestionably "compiled in the process of detecting and investigating statutory or regulatory violations." This office has recognized 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 its records will harm the ongoing investigation of the other agency.'" 09-ORD-143, p. 5 (citation omitted); 15-ORD-038 (City of Florence could properly assert exemptions on behalf of the Kentucky State Police, but the burden of justifying invocation of KRS 61.878(1)(h) remained with the City). Accordingly, the question becomes whether the Department adequately demonstrated the harm that would result from disclosure as required to satisfy its burden of proof under KRS 61.878(1)(h). See KRS 61.880(2)(c).
"The adequacy of a showing of harm to the agency under KRS 61.878(1)(h) is highly dependent upon the facts of the individual case and must be narrowly determined on that basis." 14-ORD-139, p. 8. In 14-ORD-139, as in this case, the agency emphasized "that the criminal proceeding is at a pretrial stage, which distinguishes the case from the facts in City of Fort Thomas ." 14-ORD-139, p. 7. Noting that unwanted attention from the media in relation to a record, there a 911 recording, does not by itself "create a strong privacy interest" under existing authority, this office nevertheless acknowledged that "the criminal prosecution has not yet gone to trial." 14-ORD-139, p. 8. At such an "early stage in the criminal process, when no evidence has yet been presented," this office acknowledged "that the unpredictable effect of the public release of [the investigative records] witness' 911 recordings upon the fairness of the trial constitutes more than a speculative risk of harm." Id. See 14-ORD-223 (holding that "current status of a criminal prosecution could be a factor affecting the threshold for a showing of harm to the agency under KRS 61.878(1)(h) as interpreted in City of Fort Thomas " and that because recent occurrences in the detention center were still under investigation by KSP, the enforcement action was "at a very early stage and the effect of public release of the relevant jail records upon the fairness of a future trial is as unpredictable as in 14-ORD-[139]").
In this case, Mr. Unseld died approximately three days prior to Mr. Berkshire's June 7, 2016, request for the investigation file relating to Mr. Downs' 2009 death. Accordingly, the investigation regarding Mr. Unseld's death was in its infancy - a factor that weighs in favor of establishing harm on the facts presented. Mr. Berkshire requested the records pertaining to investigation of Mr. Downs' death, which has been closed since 2009, and those records would otherwise be subject to disclosure unless protected on a different statutory basis. However, the law enforcement agency investigating Mr. Unseld's death, as well as the Commonwealth's Attorney, have requested that the Department withhold those records based on the reasonable belief that a connection possibly exists between the death of Mr. Downs, whose family threatened Mr. Unseld, and the death of Mr. Unseld. The full extent of that connection is currently unknown, and the harm that would therefore result from disclosure of the 2009 Downs investigation, while fairly self-evident on these particular facts, could not be known only a few days into the investigation of Mr. Unseld's death. 2 Here, as in 14-ORD-139 and 14-ORD-223, "any of the records in question may become evidence in a criminal trial." 14-ORD-223, p. 3. Given the ongoing investigation by the Bardstown Police Department, this fact "is sufficient under the rationale of 14-ORD-[139] to establish the harm that would likely result from disclosure of these investigative documents." 14-ORD-223, p. 3. The Department did not violate the Open Records Act in denying Mr. Berkshire's request on the basis of KRS 61.878(1)(h).
Either party may appeal this decision by initiating action in the appropriate circuit court per 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