Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this Open Records Appeal is whether the Highland Heights Police Department ("Department") violated the Open Records Act in denying John Roth's February 20, 2018, request for "a copy of all material in my case file [Campbell Circuit Court Case No. 16-CR-00653]." Specifically, Mr. Roth asked for all complaints, arrest warrants, Grand Jury recordings, subpoenas, laboratory results from the Kentucky State Police laboratory, correspondence to and from all Campbell County detectives, and "[a]ny and all" DVD or voice recordings "of any interviews with the requestor, confidential informant witnesses or other witnesses." By undated letter, Chief William R. Birkenhauer advised Mr. Roth that the Department possesses "the following information relating to your case; [o]ne recorded phone call, [o]ne audio and video recording of controlled buy, [c]opy of search warrant and affidavit, [p]hotos from search warrant, Case Report from controlled buy, Case Report from the search warrant execution which includes citation and evidence log." Chief Birkenhauer stated that said items were protected from disclosure pursuant to KRS 17.150(2)(d) and 61.878(1)(h) "[b]ecause this case is still on appeal[.]" 1
Mr. Roth initiated this Open Records Appeal by letter dated March 14, 2018. Upon receiving notification of Mr. Roth's Appeal from this office, Highland Heights City Attorney Steven J. Franzen responded on behalf of the Department. Mr. Franzen first explained that Mr. Roth "was found guilty by jury trial in June of 2017 for two charges of Trafficking in Controlled Substances 1st Degree. A notice of Appeal was subsequently filed as Kentucky Court of Appeals Case # 2017-CA-001210. Currently, the matter is assigned on the merits as of February 22, 2018." For the first time, the Department cited KRS 61.878(1)(l), pursuant to which "disclosure of the public records or information is prohibited, restricted or otherwise made confidential by enactment of the General Assembly." Mr. Franzen asserted that KRS 17.150(2)(d), incorporated into the Act per KRS 61.878(1)(l), prohibits disclosure in this matter, citing numerous Open Records Decisions affirming denials based on this confidentiality provision and recognizing that "an investigation is 'open' so long as there was a possibility of further judicial proceedings." The Department reiterated that Mr. Roth's "appeal was and currently is still pending in this matter thereby making the matter open and disclosure prohibited under KRS 17.150(2). See 04-ORD-129." Attached to Mr. Franzen's March 28, 2018, response to Mr. Roth's Open Records Appeal was a copy of the case history for both 16-CR-00653 and 17-CA-001210, each of which verified the Department's account of the procedural history and the status of Mr. Roth's case.
The Department initially failed to cite KRS 61.878(1)(l), pursuant to which KRS 17.150(2) is deemed to be incorporated into the Open Records Act, and failed to identify the harm that would result from disclosure under KRS 61.878(1)(h), as required under KRS 61.880(1). Pursuant to KRS 61.880(1), a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 07-ORD-226; 12-ORD-211. This office has long recognized, "it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3)." 00-ORD-10, pp. 10-11(citation omitted)(original emphasis). A "bare assertion" simply does not satisfy that burden. Id. , p. 11. See
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d at 851-852; 14-ORD-039; 15-ORD-003. In responding to Mr. Roth's Appeal, the Department cured these deficiencies and justified its denial on the basis of KRS 17.150(2) as construed in existing legal authority.
KRS 17.150(2) provides that "[i]ntelligence 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." 2 The Attorney General has analyzed the underlying purpose of KRS 17.150(2), observing that "[i]nvestigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2 (citing Privacy: Personal Data and the Law , National Association of Attorneys General (1976)). This office later determined that the term "investigative report" is "broad enough to extend to laboratory, forensic, and other reports generated in the course of an investigation." 05-ORD-246, p. 2. In addition, audio and video recordings, including "dash-cam video recordings, " fall within the parameters of KRS 17.150(2). See 07-ORD-095 (quoting 04-ORD-234).
In 14-ORD-154, this office was asked to determine whether the Lakeside Park-Crestview Hills Police Authority violated the Open Records Act in denying a request for specified categories of investigative records pertaining to an individual submitted by that individual's attorney in the context of a motion to set aside a conviction due to ineffective assistance of counsel. Having quoted the language of KRS 61.878(1)(h) and summarized the analysis found in City of Fort Thomas , the Attorney General observed that KRS 17.150(2)(d) does not require a showing of harm, but KRS 17.150(3) does provide that, "[w]hen a demand for the inspection of the records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity. " 14-ORD-154, p. 3. Like KRS 61.878(1)(h), this provision further mandates that exemptions codified at KRS 17.150(2) "shall not be used by the custodian of records to delay or impede the exercise of rights granted by this section." Id.
This office concluded that no showing of harm was demonstrated to justify the agency's invocation of KRS 61.878(1)(h) relative to most of the requested investigative records. 14-ORD-154, p. 3. However, the office did find that the agency's denial was appropriate under KRS 17.150 , reasoning that KRS 17.150 does not require the agency to demonstrate a showing of harm. 3 Id. "It merely requires the agency to provide a specific reason for withholding the records. KRS 17.150, therefore, makes the records at issue exempt from disclosure until there is no prospective law enforcement action, so long as the agency specifies what that action is or could be." 4 Id. , pp. 4-5; 16-ORD-199; 17-ORD-144. Because the agency specified the nature of the prospective law enforcement action in 14-ORD-154, this office held that it had properly withheld the responsive investigative records under KRS 17.150. Id. See 16-ORD-199. The analysis contained in 14-ORD-154 is controlling. See 18-ORD-027. Likewise, in 14-ORD-228, p. 4, this office determined that the Kentucky State Police properly withheld responsive investigative records where it specified that the records were "part of an open and ongoing investigation" and that "prosecution has not been declined." See also 15-ORD-077; 16-ORD-087; 16-ORD-246.
Here, the Department has consistently maintained that Mr. Roth's appeal remains pending and enforcement action is therefore not complete. Mr. Franzen attached the relevant documentation to verify that fact. In addition, the Department ultimately noted the records in dispute contain information that may lead to identification of a confidential witness(es). 5 Accordingly, the Department provided "a 'specific reason' for withholding the records, and [its final response] was therefore sufficient under 14-ORD-154 to justify denial of the request on the basis of KRS 17.150[.]" 6 16-ORD-199, p. 5; 16-ORD-244; 16-ORD-275. Because this appeal presents no basis to depart from the foregoing line of authority, this office affirms the denial by the Department of Mr. Roth's request. See 17-ORD-144 (prejudice to the recollection of witnesses was sufficient justification under KRS 17.150(2)(d) to deny release of records from open investigation where prosecution was a possibility). KRS 17.150(3) does not permit a public agency to permanently withhold investigation files or indefinitely postpone access to investigative records. However, the Department has adequately substantiated its characterization of the law enforcement action here. See 17-ORD-242.
Either party may appeal this decision by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 In City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Kentucky Supreme Court addressed in detail the "law enforcement exception" codified at KRS 61.878(1)(h). Significantly, the Court noted that "a police department's investigatory file is not categorically exempt from disclosure under the Open Records Act merely because it pertains to a prospective enforcement action ." City of Fort Thomas, 406 S.W.3d at 849 (emphasis added). In so holding, the Court expressly rejected the City's position that merely because the conviction of the individual whose investigative file was at issue remained subject to collateral challenge its entire investigative file was exempt. Id. "[T]he mere fact that an enforcement action remains prospective is [not] enough to establish that disclosure of anything from a law enforcement file constitutes 'harm' under the exemption." Id. at 852 (overruling in part Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992)). See 17-ORD-213. Because KRS 17.150(2)(d) is controlling here, further analysis of the Department's argument relative to KRS 61.878(1)(h) is unnecessary.
2 However, KRS 17.150(2) also provides that "portions of the records may be withheld from inspection if the inspection would disclose":
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant ;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in the records to be used in a prospective law enforcement action .
(Emphasis added.) Ms. Franzen that Mr. Roth expressly asked for information regarding "'confidential informant witnesses' and the response clearly identifies that the documents contain said information[,]" which "is not otherwise known[.]"
3 The Authority cited "an ongoing law enforcement action, under RCr 11.42." 14-ORD-154, p. 4. This office noted that said action was "prospective actions under both Skaggs and Ft. Thomas . While evidence of a prospective action is insufficient to demonstrate harm under the Ft. Thomas case, that case did not address KRS 17.150." Id.
4 KRS 17.150(3) does provide that, "[w]hen a demand for the inspection of the records is refused by the custodian of records, the burden shall be upon the custodian to justify the refusal of inspection with specificity."
5 Although the Department noted as much in discussing KRS 61.878(1)(h), this fact is equally relevant under KRS 17.150(2)(a).
6 At pages 3-4 of 16-ORD-199, this office reaffirmed that "'that police incident reports, as opposed to investigative files, are not generally exempt from disclosure. 09-ORD-205; 05-ORD-003.'" 16-ORD-085, p. 3; 04-ORD-188; 08-ORD-105. To the contrary:
"Some records found in, or appended to, an investigative file, such as a uniform offense report, or incident report, do not enjoy absolute protection under . . . KRS 17.150(2) while an investigation is proceeding or a case is otherwise open." Id., quoting 05-ORD-211, n. 3. "If a police department feels it necessary to withhold certain items from public inspection in order to protect a police officer or an informant," the Attorney General concluded, "it may do so under KRS 17.150 but the burden is upon the custodian to justify the refusal with specificity. KRS 17.150(3)." 16-ORD-085, p. 3(citation omitted). See Kentucky New Era v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013); Cape Publications v. City of Louisville, 147 S.W.3d 731, 733, 735 (Ky. App. 2003).