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 its denial of Mary Sheibani's March 23, 2017, request for "case files related to the investigation into the murder of Kyle 'Deanie' Breeden." For the reasons stated below, we find a partial violation of the Act.
The Breeden homicide, which occurred in 1998, was investigated by the KSP for some time, but the case "then went cold for nearly seven years until KSP Detective Todd Harwood was assigned to it on May 22, 2006." King v. Harwood, 852 F.3d 568, 573 (6th Cir. 2017). Detective Harwood soon identified Susan Jean King as the suspected perpetrator. Ms. King, who has a pending action against Detective Harwood for malicious prosecution, entered an Alford 1 plea to manslaughter and tampering with physical evidence in August 2008. Id. at 575.
In May 2012, a serial murderer named Richard Jarrell confessed to the killing, "including very specific details that had not been released in media reports." Id. at 576. Although Mr. Jarrell recanted his confession a week later,2 the Kentucky Court of Appeals deemed the new evidence sufficient to vacate Ms. King's conviction and remand for a new trial. King v. Com., 2014 WL 3547480, No. 2012-CA-001985-MR (Ky. App. July 18, 2014) (unpublished disposition). On October 9, 2014, the Spencer Circuit Court dismissed the charges against her. King v. Harwood, 852 F.3d at 576. Mr. Jarrell was not charged with the homicide, 3 and both KSP and the Commonwealth's Attorney have, at different times, acknowledged proof problems with proceeding against him based on the recanted confession. 4
In her open records request, made on behalf of Sirens Media, Ms. Sheibani stated that she was "primarily looking to request items such as: the incident report(s), witness interview summaries, audio recordings if available, as well as scene/evidence photographs, etc." She mentioned that "the cold case investigation resulted in a guilty plea in 2008, from Susan Jean King."
On April 6, 2017,5 KSP records custodian Emily M. Perkins responded as follows:
Please be advised that the conviction of Susan Jean King was vacated and remanded back to the Circuit Court, and there remains a significant likelihood of further litigation regarding the criminal charges; accordingly, your request is denied pursuant to KRS 17.150(2)(d), which states that records of law enforcement agencies are exempt from disclosure through the provisions of the Open Records Act until such time as prosecution is completed or declined, and 61.878(1)(1), which states that records made confidential by another Act of the General Assembly shall remain exempt from disclosure through the Open Records Act. Further, OAG 83-356 states "criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken." Premature release of those records in a public forum could result in prejudice to the witnesses and has the potential to adversely affect their recollection of the events.
Ms. Sheibani initiated an appeal on April 11, 2017, contending that "no further criminal charges have been brought in relation to the murder" and "the records requested relate to the investigation and subsequent conviction of Ms. King, who ? is no longer under suspicion of being involved in or related to any investigation into the murder. "
On April 24, 2017, the KSP submitted a response to the appeal, signed by Staff Attorney Cody Weber. The following justification of the denial is offered on appeal:
The requested files pertain to an open investigation, as prosecution has not been declined. Accordingly, the requested records are exempt from disclosure 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 until such time as prosecution has been completed or declined, as well as 61.878(1)(1)? Premature release of these records in a public forum will harm or impede an ongoing investigation as it could result in prejudice to the potential witnesses and has the potential to adversely color witnesses['] recollection of the events. Further, public disclosure could also result in bias to a potential jury pool. Additionally, we have contacted the Commonwealth Attorney who has requested us not to disclose the files as it is still part of an open investigation.
? While it is true that Ms. King's charges ? were dismissed in 2014, it does not change the fact that there is still an open investigation into the murder [and] those items related to the investigation [are] exempt from disclosure due to being part of a prospective law enforcement action.
The KSP further provided an affidavit from Commonwealth's Attorney Laura Witt, who states in part:
With the assistance of KSP I am still actively investigating this matter, including conducting interviews with potential witnesses as they become available to aid in the investigation.
?
Disclosure of any portion of this case is unwarranted at this time, as public disclosure of any materials pertaining to this investigation would irreparably harm the Commonwealth in securing prosecution for any criminal charges that may potentially be brought in contradiction of KRS 17.150(2)(d).
We note that KRS 61.878(1)(h) was not raised in the KSP's initial response to Ms. Sheibani, but only on 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) 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. "
Although the KSP did not, in its initial response, indicate the existence of an ongoing investigation in cooperation with the Commonwealth's Attorney, we find that it has provided sufficient specificity on appeal to justify the withholding of records. While Ms. Sheibani argues that the KSP's records relate only to Ms. King and that she "is no longer under suspicion, " it is by no means clear that the prior investigation is factually separate from the ongoing one or that Ms. King has become irrelevant to the investigation. Accordingly, we find that KSP initially failed to justify its refusal with specificity under KRS 17.150(3), but subsequently cured this deficiency on appeal as to the investigative materials, which may properly be withheld at this time under KRS 17.150(2)(d).
Nevertheless, we find that Ms. Sheibani's request was improperly denied to the extent that she sought "incident report(s)." The "UOR-1 (Initial Page)," or first page of the Uniform Offense Report, is the functional equivalent of an initial offense report or incident report. 05-ORD-003. "[P]olice incident reports, as opposed to investigative files, are not, generally, exempt from public inspection" pursuant to KRS 17.150. 09-ORD-205. Accordingly, the UOR-1 (Initial Page) should not have been withheld under KRS 17.150(2).
Furthermore, such incident reports cannot "be routinely redacted on the basis of KRS 61.878(1)(h)." 09-ORD-205. 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." The KSP has specified no concrete harm that would be posed by the release of the UOR-1 (Initial Page) based on its content. Therefore, we find that the KSP's burden of proof has not been met as to that document.
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.
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