Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Summary : Kentucky State Police did not violate the Open Records Act in denying a request for all photographs taken during the investigation of a specific accident, relative to which KSP has not declined prosecution, because it ultimately provided adequate specificity to justify its denial under authority of KRS 17.150(2)(d), incorporated into the Open Records Act by operation of KRS 61.878(1)(l).
Open Records Decision
The question presented in this appeal is whether the Kentucky State Police ("KSP") violated the Open Records Act in denying Timothy R. McCarthy's June 13, 2019, request for "a copy of any and all police photos that were taken during the investigation [of the accident that occurred on KY696 at approximately 3:46 p.m. on June 5, 2019]." 1 Mr. McCarthy advised KSP that his firm, the Nutt Law Office, represents the Estate of Akeem Williams "regarding injuries sustained" in the aforementioned accident. Consistent with existing legal authority construing KRS 197.025(2)(d), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), this office affirms KSP's denial of Mr. McCarthy's request.
By letter dated June 27, 2019, Stephanie Dawson, Official Custodian of Records, responded on behalf of KSP. She explained:
[These records are] part of an investigation that is still open, and prosecution has not been declined; accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h), which exempt law enforcement records from disclosure until such time as prosecution is declined or completed. 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. However, a copy of the KYIBRS report, before the narrative portion begins . . . is subject to disclosure regardless of the status of the investigation pursuant to [09-ORD-205]. Therefore, a copy of that report is enclosed. 2, 3
By letter dated July 23, 2019, Mr. McCarthy initiated this appeal. Upon receiving notification of his appeal, Staff Attorney Cody Weber supplemented the agency's response. He first reiterated the initial response by KSP, also referencing KRS 61.878(1)(l), pursuant to which records or information, "the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly," such as KRS 197.025(2), are protected from disclosure under the Act. He further stated that KSP had assigned Case Number 15-19-0253 to the June 5, 2019, accident, investigation of which is ongoing. Because the case is being actively investigated, "prosecution has not been declined and any of the requested records may become evidence in a criminal trial. " In support of the agency's position, Mr. Weber included an affidavit from the investigating officer.
Mr. Weber further asserted that 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['] recollection of the events." Disclosure of the photographs "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 that may influence their statements or testimony. Further, public disclosure would also result in bias to a potential jury pool."
Unless exempted by other provisions of the Open Records Act, "public records exempted under [KRS 61.878(1)(h)] shall be open after enforcement action is completed or a decision is made to take no action." KRS 61.878(1)(h). Similarly, 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." 4 The Attorney General has analyzed the underlying purpose of KRS 17.150(2) and its "companion statute, " KRS 61.878(1)(h), 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. Audio and video recordings, including "dash-cam video recordings, " also fall within the parameters of KRS 17.150(2), 07-ORD-095 (quoting 04-ORD-234), as well as photographs made as part of a criminal investigation. 19-ORD-025, p. 4; 09-ORD-030. When viewed jointly, the implication of these provisions is that only those investigative files "pertaining to a named suspect after that suspect has been prosecuted or a decision has been made not to prosecute him" are subject to public inspection. 04-ORD-041, p. 4 (citation omitted). Neither of those has occurred here.
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 said 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 v. Cincinnati Enquirer, 506 S.W.3d 842 (Ky. 2013), 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. However, the Attorney General went on to find that its denial was appropriate under KRS 17.150, reasoning as follows:
. . . While evidence of a prospective action is insufficient to demonstrate harm under the Ft. Thomas case, that case did not address KRS 17.150. Rather, Ft. Thomas addressed the explicit showing of harm requirement in KRS 61.878(l). As KRS 17.150 does not include such a showing of harm, the canon of statutory interpretation known as the plain meaning rule requires the statute be read without a harm element. [Internal citation omitted.] Accordingly, KRS 17.150 does not require the agency to demonstrate a showing of harm. 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. Having specified the nature of the prospective law enforcement action here, the agency properly withheld the responsive records under KRS 17.150.
14-ORD-154, pp. 4-5; 16-ORD-199; 18-ORD-027. The analysis contained in 14-ORD-154 is controlling. Likewise, in 14-ORD-228, p. 4, this office determined that KSP properly withheld responsive investigative records where it specified that the records were part of "an active, open investigation," and that "prosecution has not been declined." See 15-ORD-077; 16-ORD-087; 16-ORD-246; 18-ORD-035. KSP has consistently maintained as much in this case. Because KRS 17.150(2)(d) is controlling here, this office makes no finding relative to KRS 61.878(1)(h).
Here, as in 14-ORD-223, "the records [photographs] in question may become evidence in a criminal trial. " Id. , p. 3; 15-ORD-105. Thus, KSP 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[.]" 16-ORD-199, p. 5; 16-ORD-244; 16-ORD-275; 18-ORD-035. Accordingly, this appeal presents no basis to depart from the foregoing line of authority. This office affirms the denial by KSP of Mr. McCarthy's request. See 17-ORD-144. In so doing, this office notes that KRS 17.150(3) does not permit a public agency to permanently withhold investigation files. Although KSP cannot indefinitely postpone access to the requested photographs by characterizing the investigation as open/active, it has adequately substantiated that characterization here, particularly in light of the brief period that elapsed between the incident and the request. See 17-ORD-242. Substituting our judgment for that of KSP on this issue would be inappropriate on the facts presented. However, upon completion of the investigation or a determination not to prosecute, any investigative photographs that are responsive to Mr. McCarthy's request will be subject to disclosure unless those records are specifically excluded from application of the Act by another statutory exception.
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 Although Mr. McCarthy referenced "inspection documents (including the download from the EMC on truck), photos, and other reports regarding the accident involving Akeem Williams on June 5, 2019[,]" in his letter of appeal, our assessment is "confined to the four corners" of the original request notwithstanding any subsequent attempts by the requester/appellant to modify his description. 13-ORD-015, p. 2; 14-ORD-073; 17-ORD-116.
2 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. See also 04-ORD-188; 08-ORD-105; 09-ORD-205; 16-ORD-085.
3 Ms. Dawson further indicated that information such as dates of birth, social security numbers, home addresses, telephone numbers, etc. was redacted per KRS 61.878(1)(a). Mr. McCarthy has not challenged the redaction of this information.
4 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.