Opinion
Opinion By: Andy Beshear, Attorney General; Gordon R. Slone, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Eastern Kentucky Correctional Complex ("EKCC") violated the Open Records Act in its disposition of inmate Phillip Lanham's open records request for a copy of an internal affairs investigation. For the reasons stated below, we find that EKCC did not substantively violate the Act.
By request dated May 11, 2017, Mr. Lanham asked to inspect "All records pertaining to any investigation conducted by Internal Affairs where I am named as the person under investigation, from January 6, 2017 until today's date." EKCC responded to the request on May 25, 2017, providing only two pages, with redactions. A memorandum from EKCC Internal Affairs Department was attached to the denial and explained that:
Pursuant to KRS 61.878(3) there is an ongoing Kentucky State Police investigation to which inmate Phillip Lanham's #165578 request is associated with. The preliminary investigation from EKCC Internal Affairs consist of content that will not be revealed to inmate Phillip Lanham #165578 due to the safety and security of the institution during the active investigation. During this time, Inmate Lanham #165578 will be entitled to photographs pertaining to him, disciplinary report issued and the investigative summary statement pertaining to the occurrence in which he became involved in the investigation. Please advise inmate Lanham that he can further his request to obtain public records involving the investigation at a further date, recommended time of 6 months for new request from today's date.
Mr. Lanham appealed EKCC's response by letter dated May 31, 2017. Catherine M. Stevens, Staff Attorney, Justice and Public Safety Cabinet, responded to the appeal on behalf of EKCC. Ms. Stevens explained that the "disciplinary report" referenced in EKCC's denial had previously been provided to Mr. Lanham through the disciplinary process but she admitted that the response by EKCC was untimely. The request had been stamped as received by EKCC on May 12, 2017, and, pursuant to KRS 197.025(7), EKCC had five calendar days, excepting Saturdays, Sundays and legal holidays to issue a response. EKCC's response was due on May 19, 2017, but it was not sent until May 25, 2017. EKCC's failure to issue a timely response is a procedural violation of the Open Records Act.
Ms. Stevens also explained that the exemption cited in the denial should have been KRS 61.878(1)(h)1, rather than KRS 61.878(3). She stated that Mr. Lanham's "request for records pertaining to an internal affairs investigation of him are exempt due to an ongoing Kentucky State Police investigation of the matter. Except for the records provided as noted, EKCC properly denied the request. . ." Ms. Stevens referred to the memorandum from the Internal Affairs Office, EKCC, that explained that there was an ongoing investigation by the Kentucky State Police that is associated with Mr. Lanham's request. She argued that the ongoing KSP investigation should be a basis for denying the request pursuant to KRS 61.878(1) ((h). As support for her position, she cited our decision at 09-ORD-143:
This office has recognized, on more than one occasion, 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. See also 97-ORD-52, OAG 90-1 16, 94-ORD-56, 02-ORD-146.
In pertinent part, KRS 61.878(1)(h), known as the "law enforcement exemption" , exempts from the Open Records Act "records of law enforcement agencies. . . if the disclosure of the information would harm the agency. . . by premature release of information to be used in a prospective law enforcement action." However, 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, (Emphasis added).2, 3 Because EKCC did not state the factual basis for the harm that would be caused by release of the investigation, the denial fails under the claimed exemption of KRS 61.878(1)(h). 16-ORD-175 (Luther Luckett Correctional Complex violated the Open Records Act in failing to assert the factual basis of the harm that would be caused by release of records under the law enforcement exemption of KRS 61.878(1)((h)).
The memorandum from EKCC Internal Affairs Department also claimed that the preliminary investigation cannot be released "due to the safety and security of the institution during the active investigation." Ms. Stevens clarified that this explanation was made under the security exception provided by KRS 197.025(1), which provides:
KRS 61.870 to 61.884 to the contrary notwithstanding, no person shall have access to any records if the disclosure is deemed by the commissioner of the department or his designee to constitute a threat to the security of the inmate, any other inmate, correctional staff, the institution, or any other person.
Ms. Stevens stated that "The Attorney General has on prior occasions recognized that the discretion afforded the Commissioner in KRS 197.025(1) is broad, and that the Office of the Attorney General should not 'substitute its judgment for that of the correctional facility or the Department of Corrections.'" We concur. KRS 197.025(1), incorporated into the Open Records Act through KRS 61.878(1)(l), reflects a legislative commitment to "prohibiting inmate access to otherwise nonexempt public records where disclosure of those records is deemed to constitute a threat to security." 96-ORD-209. It is the commissioner, or his designee, whose determination in this regard is controlling. Therefore, we find no substantive violation of the Open Records Act by EKCC in denying Mr. Lanham's request for the investigation records.
As we have affirmed EKCC's withholding of a portion of Mr. Lanham's request under KRS 197.025(1), we need not review Ms. Stevens's alternative argument that the withheld records are also exempt under KRS 197.025(2)(d), which exempts investigative records from disclosure until such time as prosecution has been completed or declined.
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 proceeding.
Footnotes
Footnotes
1 KRS 61.878(1)(h) states, in pertinent part: "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. . ."
2 We recognize that Ms. Stevens cited KRS 61.878(1)(h), in part, for the proposition that an agency may withhold records on the basis that premature disclosure may harm an ongoing investigation by another agency, however we must determine if the explanation regarding the ongoing investigation is a sufficient basis to withhold the records. See footnote 3, below.
3 Ms. Stevens cited to our decision at 09-ORD-143 for support in denying the request under the law enforcement exemption at KRS 61.878(1)(h). However, the decision in Fort Thomas, supra, was issued in 2013, after our decision in 09-ORD-143, and clarified that a public agency must show the factual basis for the application of the exemption in KRS 61.878(1)(h). To the extent that 09-ORD-143 conflicts with the decision in Fort Thomas , that decision is hereby modified.