Request By:
Mr. Lawrence Trageser
Emily M. Perkins
Cody Weber
Opinion
Opinion By: Andy Beshear,Attorney General;Sam Flynn,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Kentucky State Police (hereinafter "KSP") violated the Open Records Act by denying Mr. Lawrence Trageser's Open Records request on the grounds that he requested records, including a CAD report and dispatch tape, pertaining to an open law enforcement investigation. In accordance with KRS 61.878(1)(h) and (l), and KRS 17.150(2)(d), we find that KSP provided sufficient specificity and the risk of harm to justify its refusal to provide the records. Accordingly, this Office affirms KSP's denial of Mr. Trageser's Open Records request.
Mr. Trageser appealed KSP's denial of his, March 27, 2017, Open Records request. Mr. Trageser requested, in part, the following:
"...a CAD report for a 911 dispatch recording to a break in and or home invasion, occurring on or about March 12, 2017 at or around the time of 9:30 p.m. or after...Petitioner is also seeking the audio transcript of the 911 call for this report, which should include all voice communications from the KSP dispatcher (s), the dispatched and responding units, the caller at the crime scene and all phone conversations by KSP dispatcher (s) by radio or phone to Spencer County Sheriff..."
By letter of March 31, 2017, KSP responded to Mr. Trageser's request. In its March 31, 2017, response, KSP denied Mr. Trageser's request on the grounds that the responsive dispatch log and audio recordings were "part of an investigation that is still open...," and therefore exempt from disclosure under KRS 17.150(2)(d) and KRS 61.878(1)(l). KSP did, however, provide a copy of the initial KYIBRS report, before the narrative portion, pursuant to 09-ORD-205. KSP stated that the KYIBRS report made available to Mr. Trageser was redacted, in accordance with KRS 61.878(1)(a). The KYIBRS report was made available after remittance of $ 0.77 copying fee and postage.
On April 17, 2017, Mr. Trageser appealed KSP's denial of the above-referenced, open records request, claiming that he had "not requested investigative files, picture or evidence relating to this crime only the CAD report, which was specified to include the dispatch of all law enforcement units to the scene and i[n] particular, Spencer County Sheriff[]'s response to include dispatcher's phone call to him and the conversation with his refusal to go to the scene. The 911 dispatch tape and or recording would provide a very detailed account of this occurrence."
On April 24, 2017, KSP responded to Mr. Trageser's appeal, contending that its denial of his appeal was appropriate on the grounds that the records were exempt under KRS 61.878(1)(h) and KRS 17.150(2)(d), as incorporated under KRS 61.878(1)(l), as records of law enforcement agencies to be used in a prospective law enforcement action. KSP specifically contends that the records are exempt from disclosure until such time as prosecution is completed or declined, and that prosecution has not been declined yet. Moreover, KSP claims that "premature release of the records in a public forum will harm or impede an ongoing investigation as it could result in prejudice to the potential witnesses, adversely color witness recollections, and result in bias to a potential jury pool." Finally, KSP argues that "a CAD report and dispatch tape are exempt from disclosure if there is an open, ongoing investigation, as premature release of the records will harm or impede the investigation."
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.
With respect to KRS 61.878(1)(h), this Office previously stated:
In order to successfully raise this exception [to disclosure] , a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
11-ORD-102 at 2 ( citing 07-ORD-139).
In the instant appeal, these tests are satisfied, as is City of Fort Thomas . KSP is a state law enforcement agency, and the agency to which the Open Records request was directed. Both parties acknowledge that the requested records relate to a CAD report and 911 emergency dispatch tape concerning a break in and/or home invasion on March 12, 2017 to a residence in Spencer County. Finally, although KSP did not initially refer to the harm caused by the release of the records in its response, KSP did subsequently identify the risk of harm in its response to this appeal, stating that "premature release of these records in a public forum will harm or impede the ongoing investigation as it could result in prejudice to the potential witnesses and has the potential to adversely color witnesses recollection of the events..." This Office has recently upheld KSP's refusal to release 911 dispatch calls on similar grounds. See e.g. , 16-ORD-275. 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.
KSP further argues that KRS 17.150(2), as incorporated by KRS 61.878(1)(l), authorized KSP to deny Mr. Trageser's request. 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. " Unlike KRS 61.878(1)(h), KRS 17.150 does not require the agency to demonstrate a showing of harm. 16-ORD-275, p. 1. It merely requires the agency to provide a specific reason for withholding the records. Id. 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. As discussed above, KSP did not initially state the reasons to justify the refusal of inspection with specificity in its response to the request. However, KSP did provide specificity in its response to this appeal. Accordingly, we find that KSP initially violated the Open Records Act in failing to identify the harm caused by release of the records or failing to justify its refusal with specificity, but subsequently cured those deficiencies on appeal.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.