Request By:
Charlie Dorris, # 185012Ms. Emily M. Perkins
Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,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 regard to a request made by Kentucky State Reformatory inmate Charlie Dorris. For the reasons stated below, we find that KSP failed to meet its burden of proof under the Act in that it failed to state the harm caused to the agency by releasing laboratory test results that are part of an ongoing prosecution, and failed to justify withholding the records with specificity.
Mr. Dorris allegedly submitted his open records request to the KSP Crime Lab on January 19, 2017, seeking the following:
A copy of the Laboratory Test Results of the Controlled Substance tested in connection with the offense charged against Kentucky State Reformatory Prisoner Charlie Dorris # 185012, under Oldham County Circuit Court Indictment Number # 17-CR-00021. Said substance was allegedly found October 23, 2016, at the Kentucky State Reformatory. . . .
After receiving no response from KSP, Mr. Dorris initiated an appeal that was received in this office on February 17, 2017.
On February 22, 2017, KSP records custodian Emily M. Perkins responded to the appeal. She states that KSP never received Mr. Dorris' request prior to the appeal, but makes the following response:
Appellant's request pertains to an investigation by the Kentucky State Reformatory that is pending felony criminal prosecution before the Oldham Circuit Court. Therefore, the requested records are exempt from disclosure through the Open Records process pursuant to KRS 17.150(2)(d) and 61.878(1)(h), which state that records of law enforcement agencies to be used in a prospective law enforcement action shall remain exempt from disclosure through the Open Records Act. Further, 09-ORD-143 stated . . . 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.
There being nothing in the record to contradict KSP's assertion that it did not receive the request, we shall treat its February 22 letter as its response to Mr. Dorris.
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, 851 (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." KSP did not make any reference to the harm caused by the release of the records either in its response to the request or to the 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. " KRS 17.150(3), however, 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. " KSP did not state the reasons to justify the refusal of inspection with specificity in its response.
In 16-ORD-084, which we attach and adopt as the basis for our reasoning herein, we recently addressed a virtually identical set of facts, in which KSP had withheld a laboratory case file under KRS 17.150(2) and 61.878(1)(h) based on the fact that there was a pending prosecution in circuit court relating to a criminal investigation by another agency. As in the present appeal, KSP failed to specify the harm to the agency as required by KRS 61.878(1)(h) and City of Ft. Thomas, supra; nor did KSP state reasons to justify the refusal of inspection with specificity as required by KRS 17.150(2).
We found in 16-ORD-084 that KSP's mere invocation of a pending prosecution was insufficient to meet the standard for either a showing of harm under KRS 61.878(1)(h) or specific justification under KRS 17.150(2). Consistently with that decision, we find that KSP failed to meet either standard in this instance. In failing to specify the harm that would be caused by the release of the laboratory test results, and failing to justify refusal of inspection with specificity, KSP did not meet its burden of proof under KRS 61.880(2)(c). Therefore, we find a violation of the Open Records Act.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.