Opinion
Opinion By: Andy Beshear,Attorney General;Sarah Ellen Eads Adkins,Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Montgomery County Sheriff's Office violated the Open Records Act in denying Joshua Powell's February 22, 2019, request for records. Because the Sheriff's Office failed to carry its burden of proving the requested records were part of an ongoing investigation and also failed to respond, in part, to the request, we find the Sheriff's Office violated the Open Records Act.
On February 22, 2019, Joshua Powell, Investigator with the Capital Trials Branch at the Department of Public Advocacy, sent an open records request to the Montgomery County Sheriff's Office, requesting:
1) Copy of any document written, email sent or received or memo generated by any member of the Montgomery County Sheriff Department. In regards to inmate Charles Craycraft being transported from the MCRJ to visit his father. Inmate was transported from MCRJ to 521 Dare Drive in Mt. Sterling for approximately 2 hours on or about 9/1/2018.
2) List of all Montgomery County Sheriff Department employees whom [sic] assisted in transportation of Charles Craycraft to 521 Dare Drive on or about 9/1/2018.
The Sheriff's Office responded with a short letter on February 22, 2019, stating the records were exempt under KRS 61.878(1)(h) as they were part of an ongoing investigation.
Appellant initiated this appeal on March 1, 2019. The Sheriff's Office responded on March 7, 2019, slightly revising its initial response. With regard to the first request, the Sheriff's Office stated the request was overly broad and was part of an open investigation, but cited no statute in support of this statement. As to the second request, the Sheriff's Office replied with a single word: "None."
Appellant's first request was not overly broad. KRS 61.872(3)(b) requires the requester to "precisely describe" the records which he wishes to receive in hard copy or electronic format. This degree of precision applies whether the request asks for the records in hard copy or electronic format "as the difficulties associated with identifying and locating all responsive documents in order to ensure full compliance are the same when, as in this case, the records are not searchable based on the criteria provided." 16-ORD-242, p. 4 (assertion that agency would "have to conduct exhaustive research in order to comply with ? request for 'any and all' responsive documents for a 12.5 year period relating to projects that are not identified with a project name, [etc.] is entirely credible"); 17-ORD-177. "If a requester cannot describe the documents he wishes to inspect with sufficient specificity there is no requirement that the public agency conduct a search for such material." 13-ORD-077, p. 3 (quoting 95-ORD-108). A request must be "specific enough so that a public agency can identify and locate the records in question." 13-ORD-077, p. 3 (quoting OAG 89-8). A requester satisfies the second requirement of KRS 61.872(3)(b) if he describes in "definite, specific and unequivocal terms" the records he wishes to receive. Id. See 08-ORD-147; 13-ORD-077.
In determining that a request was too imprecise to satisfy KRS 61.872(3)(b), this office has advised:
This standard of precise description for records by mail is generally not met by what has been described as the "open-ended any-and-all-records-that-relate type of request." 08-ORD-058. Such a request runs the risk of being "so nonspecific as to preclude the custodian from determining what, if any, existing records it might encompass." 96-ORD-101. Furthermore, "...a request for any and all records which contain a name, a term, or a phrase is not a properly framed open records request, and ? generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records." 99-ORD-14.
13-ORD-077; 96-ORD-69 (records were described with sufficient clarity for agency to identify the records but agency did not maintain the records "in such a fashion that either a list was kept or that they could be readily identified and located"); 15-ORD-075 (it was "unclear what degree of 'relatedness' to GCDC or its employees would bring an investigation within the scope of the request, or whether investigations of individuals unrelated to their employment at GCDC were meant to be included").
Here, Appellant's description as to the requested records was sufficiently precise to enable the agency to identify and locate at least some records responsive to his request. Appellant noted the specific date, time range, and inmate name regarding the requested documents. His request was precise enough for the Sheriff's Office to identify or conduct a good faith search for the requested records. Accordingly, the Sheriff's Office did not meet its burden for failing to comply with an allegedly overbroad request.
The Sheriff's Office also did not meet its burden in proving that the requested records related to an ongoing investigation. Resolution of this appeal turns on the application of KRS 61.878(1)(h), 1 which holds, in relevant part, that a public agency is authorized to withhold records related to an prospective law enforcement action. 2 In
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 850 (Ky. 2013), the Kentucky Supreme Court examined in detail the "law enforcement exception" codified at KRS 61.878(1)(h), holding that in order to successfully invoke that exception "under the prospective action prong," a public agency "must show (1) that the records to be withheld were compiled for law enforcement purposes; (2) that a law enforcement action is prospective; and (3) that premature release of the records would harm the agency in some articulable way." Id. at 850. See also 08-ORD-174.
The Sheriff's Office did not meet the elements of the test established by City of Fort Thomas, 406 S.W.3d at 850. Though the Sheriff's Office is undoubtedly a law enforcement agency, it did not explain how the "records to be withheld were compiled for law enforcement purposes." Id. The Sheriff's Office did not prove the "law enforcement action is prospective." Id. Finally, the Sheriff's Office did not establish that releasing the requested records would "harm the agency in some articulable way." Id. The records are accordingly not exempt under KRS 61.878(1)(h).
Finally, the Sheriff's Office's response to Appellant's second request with the single word, "None," is a non-response. Because the Sheriff's Office did not respond to Appellant's request or this office's notification of appeal, it advanced no legal basis for denying that request. Pursuant to KRS 61.880(2)(c), "the burden of proof in sustaining the action shall rest with the agency...." The Sheriff Office's failure to respond to the open records request is equivalent to a denial of that request without specific support in the form of "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. " KRS 61.880(1); 02-ORD-116.
Accordingly, the Montgomery County Sheriff's Office violated the Act by denying Appellant's first request as overbroad; by failing to meet its burden under the ongoing investigation exception, in KRS 61.878(1)(h); and by failing to respond with any substance to Appellant's second request for records. The Sheriff's Office should immediately respond to Appellant's request or otherwise make the records available for his inspection.
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 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 KRS 61.878(1)(h) provides:
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; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The 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 KRS 61.870 to 61.884.
2 The Sheriff's Office did not actually give any information related to what open investigation exists or any information related to any of the required elements in KRS 61.878(1)(h). We assume for purposes of this appeal that the "open investigations" cited by the Sheriff's Office is actually a "prospective law enforcement action" under KRS 61.878(1)(h).