Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,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 denying an inmate's request for a police report regarding an alleged assault of that inmate by correctional officers. We find that KSP did not violate the Act by withholding the records of the ongoing investigation pursuant to KRS 17.150(2)(d) and (3) where KSP argued that premature disclosure could adversely affect the recollection of events by witnesses or defendants, or bias a potential jury pool.
Mark Morton ("Appellant"), an inmate at Little Sandy Correctional Complex, requested a copy of the following from KSP on May 20, 2019:
...any KSP police report written by the KSP Officer and/or Officers who investigated the Assault of Eastern Kentucky Correctional Complex inmate Mark Morton on or about July 23, 2018. I want a copy of any citation issued for any charges placed upon the DOC Officers who assaulted inmate Mark Morton at the Eastern Kentucky Correctional Complex as described in paragraph 1 above.
KSP timely denied the request pursuant to KRS 17.150(2)(d), as incorporated into the Open Records Act pursuant to KRS 61.878(1)(l), and Appellant appealed the denial to this office. 1 2
Cody Weber, attorney, answered the appeal on behalf of KSP, again relying on KRS 17.150(2)(d) as the basis for the denial. KSP stated that the requested records are part of an ongoing active investigation, # 08-18-0464. KSP argued that any of the requested records may become evidence in a criminal trial and that release of the requested records could harm the ongoing investigation:
? as it could result in prejudice to the potential witnesses and has the potential to adversely color witnesses' recollection of the events. Release of the requested records would also harm the investigation by tipping off potential witnesses or defendants that may be unaware they are a subject of the investigation by revealing information of witnesses that may influence their statements or testimony. It is important that victims, suspects, and witnesses not have access to each other's stories as exposure to which could either cause victim's allegations or a witness's observations to be questioned; or a suspect's story to be tailored to fit what he has learned from others. Further, public disclosure could also result in bias to a potential jury pool.
Application of KRS 17.150(2) . In pertinent part, KRS 17.150(2), incorporated into the Open Records Act by KRS 61.878(1)(l), provides:
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.
KRS 17.150(3) further provides that, "[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. "
The report KSP is preparing meets the requirements set forth in KRS 17.150(2)(d) in that it is an investigative record maintained by a criminal justice agency and the information in the investigative record may be used in a prospective law enforcement action. We have previously held that "prejudice to potential witnesses" was a sufficient showing of justification under KRS 17.150(3) for withholding intelligence and investigative reports regarding a prospective law enforcement action pursuant to KRS 17.150(2)(d). See, e.g. , 17-ORD-144; 17-ORD-094. As KSP's argument is based on the possibility of prejudice to potential witnesses, prematurely informing potential suspects of the information in the investigation, and biasing a potential jury pool in a prospective law enforcement action, we find that explanation to provide the specificity required by KRS 17.150(3). 3
However, neither KRS 17.150(2)(d) nor KRS 61.878(1)(h) cover any police incident reports or initial offense reports, including the "UOR-1 (Initial Page)," the first page of the Uniform Offense Report. "[P]olice incident reports, as opposed to investigative files, are not, generally, exempt from public inspection. " 09-ORD-205; see also 17-ORD-121. Furthermore, "the law enforcement exemption [under KRS 61.878(1)(h)] 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."
City of Fort Thomas v. Cincinnati Inquirer, 406 S.W.3d 842, 851 (Ky. 2013). As we noted in 09-ORD-205, the UOR-1 (Initial Page) does not include sensitive information "such as the 'Synopsis,' 'Modus Operandi,' 'Accused,' 'Suspects,' 'Witnesses,' 'Evidence and How Marked,' 'Investigation,' and 'Attachments.'" Therefore, without a specific articulation of concrete harm under KRS 61.878(1)(h), or specific justification under KRS 17.150(3), KSP has not met its burden of proof to exempt any such incident reports or initial offense reports, should they exist. 4
Either party may appeal this decision 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 Although Appellant complained that he had not received a response from the KSP, the record reveals otherwise. Appellant, in error, sent his request to the KSP Morehead Post, rather than to the KSP Records Custodian at the Frankfort KSP Headquarters. Rather than return the request to Appellant and cause delay, the Morehead Post forwarded the request on to the Records Custodian. The request was received by the Records Custodian on May 16, 2019, and a response was timely issued on May 21, 2019, but after Appellant mailed his appeal. Rather than dismiss this appeal because of the procedural defect of failing to include a copy of KSP's response with the appeal, due to the issues of receipt of the request we have chosen to address the substantive issues in the appeal.
2 KRS 61.878(1)(l) permits public agencies to withhold: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"
3 Since KRS 17.150(2)(d) is dispositive on this issue, we need not address KSP's arguments under KRS 61.878(1)(h).
4 This does not rule out any appropriate categorical redactions pursuant to KRS 61.878(1)(a), consistent with Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013). 18-ORD-043.