Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Summary : Kentucky State Police failed to articulate harm caused to the agency in releasing records from a completed case merely pending disposition of evidence, pursuant to KRS 61.878(1)(h), and failed to justify withholding the records with specificity, pursuant to KRS 17.150(3).
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in regard to attorney Larry Forman's request for copies of the Fulton Police Department's video footage, 911 records, officer and witness narratives, investigative records, and press materials relating to a January 16, 2017, shooting incident involving Charles Christopher McClure. For the reasons stated below, we find that KSP failed to meet its burden of proof under the Act in that it failed to make a showing of harm that would be caused to the agency by releasing the records, and failed to justify withholding the records with specificity.
The procedural history of this appeal is somewhat complicated. Two copies of Mr. Forman's initial request appear in the record, identical in content but bearing different dates. The copy submitted with Mr. Forman's appeal is dated July 16, 2017, while the copy stamped as received by KSP is dated July 17, 2017; both are addressed to KSP Post 1 - Mayfield. An additional copy of the request, dated July 24, 2017, was apparently sent to KSP Post 12 - Frankfort.
KSP received the request on July 21, 2017, and responded on July 26, 2017:
The Kentucky State Police is not in receipt of any documentation that prosecution has been declined or that a grand jury returned a 'no true bill', and the investigation remains open at this time; 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)(l), which states that records made confidential by another Act of the General Assembly shall remain exempt from disclosure through the Open Records Act. Premature release of any records related to an ongoing investigation in a public forum could result in prejudice to the witnesses and may adversely affect their recollection of the events. Prior to submitting another request to this office for this information, I recommend you contact the Post 1 Records Clerk ? to determine if the case has been closed.
On August 6, 2017, Mr. Forman replied to KSP, indicating that the Post 1 records clerk, the lead detective on the case, the Commonwealth's Attorney, and the Grand Jury Division of the Fulton Circuit Court had informed him "that the investigation has been officially closed and that no further action will be taken in this matter." He attached a copy of the grand jury's "no true bill" entered May 11, 2017, and reiterated his request.
On August 10, 2017, the KSP records custodian acknowledged receipt of the "no true bill" from Mr. Forman and replied:
The case remains open at this time due to the pending disposition of evidence and administrative review to ensure all materials are properly contained within the case file. The KSP would prefer to hold production of the documents until all evidence has been disposed of so that all documents will adequately reflect the destruction or return of evidence. Therefore, because the case is in active use pending disposition of evidence, the records are not immediately available. The records or a letter requiring pre-payment for same should be mailed to you on or before September 21, 2017.
At some time subsequent to this letter, KSP's records custodian left her position.
On September 25, 2017, Mr. Forman sent a follow-up letter advising KSP that he had still received nothing. KSP's new records custodian, apparently unaware of the August correspondence, responded on September 28, 2017, and repeated the exact language of the initial July 26 response. Mr. Forman's appeal was received in this office on October 9, 2017.
KSP submitted a response via attorney Cody Weber on October 16, 2017. This letter contains versions of both assertions previously made in the responses to Mr. Forman's request. First, KSP cites KRS 17.150(2)(d) and 61.878(1)(h), arguing:
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 [ sic ] recollection of the events. Further, public disclosure could result in bias to a potential jury pool.
Four paragraphs later, however, KSP states:
Although KSP had previously stated that the records would be provided by September 21, 2017, the case is still considered open at this time due to the disposition of evidence . It was previously believed that the case would be closed by the specified September 21st date, but at this time it cannot be determined exactly when the case will close and the records be permitted to be released. Further, ? KSP not providing the records or a follow-up by that date was merely an oversight and the result of KSP being without an Open Records Custodian during that time.
(Emphasis added.)
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."
In this instance, the investigation and prosecution of the matter are complete, and the case is merely waiting for the disposition of evidence to be administratively closed. In light of these facts, which the agency does not dispute, KSP's continued assertions that the release of records would color the recollection of witnesses or bias a jury pool not only fail to state a concrete risk of harm, but have no factual basis in the record.
KRS 17.150(2), which is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), states in relevant part as follows:
Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made. However, portions of the records 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.
Furthermore, "[w]hen 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. " KRS 17.150(3). Although such concerns as prejudicing witnesses and biasing a jury pool are relevant where there is a prospective prosecution (16-ORD-087; 17-ORD-144), this is not the case here. Since KSP has not even articulated the relevance of the disputed records to any prospective law enforcement action, we necessarily find that it has failed to justify the refusal of inspection with specificity.
Like KRS 17.150(2), KRS 61.878(1)(h) provides as to law enforcement agencies that "[u]nless exempted by other provisions of [the Open Records Act] , public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action." Furthermore, "[t]he 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 [the Act]." Similarly, KRS 17.150(3) provides: "Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section."
In 10-ORD-123, we found that "[t]he fact that the investigation was 'open' 'pending disposition of evidence, staff review of the investigation, and finalization of all paperwork' did not, standing alone, justify KSP's reliance on [KRS 61.878(1)(h) and 17.150(2)] in denying [a] request." Since this appeal presents the same situation, we find that KSP failed to meet its burden of showing harm to the agency and justifying its denial with specificity. Accordingly, we find that KSP violated 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.