23-ORD-123
June 6, 2023
In re: Stephen Bratcher/Elizabethtown Police Department
Summary: The Elizabethtown Police Department (“the Department”)
violated the Open Records Act (“the Act”) when it failed to meet its
burden of proof to sustain its denial of a request for records under
KRS 17.150.
Open Records Decision
On March 9, 2023, Stephen Bratcher (“Appellant”), an investigator with the
Kentucky Department of Public Advocacy (“DPA”), made a request to the Department
for copies of all reports, documentation, recordings, and photographs relating to a
case involving one of DPA’s clients. In response, the Department stated that, “after
speaking with” the Elizabethtown City Attorney, it could not “release any records
pertaining to this request pursuant to KRS 17.150” and the Appellant should “seek a
discovery [sic] for this information.” The Appellant forwarded the Department’s
response to the City Attorney and asked him to clarify whether the Department was
“denying each specific request due to KRS 17.150.” The Appellant also argued the
Department was required to provide the records under KRS 61.878(5),
notwithstanding its reliance on KRS 17.150 to deny the request. The City Attorney
replied that KRS 61.878(5) is permissive, and therefore, did not change the
Department’s disposition. However, he did not address the Appellant’s question about
whether the Department was denying every part of his request under KRS 17.150.
This appeal followed.
The Appellant argues that, under KRS 61.878(5), he is entitled to obtain copies
of records from any public agency because he is an agent of DPA, even if the requested
records are exempt from disclosure. KRS 61.878(5) provides that the exemptions
under KRS 61.878(1) “shall in no way prohibit or limit the exchange of public records
or the sharing of information between public agencies when the exchange is servinga legitimate governmental need or is necessary in the performance of a legitimate
governmental function.”1 However, this Office has consistently found that disclosure
of exempt records under KRS 61.878(5) is within each agency’s discretion. See, e.g.,
22-ORD-228; 19-ORD-185; 05-ORD-133; 96-ORD-177. Accordingly, KRS 61.878(5)
does not entitle the Appellant to obtain copies of records if they are exempt under the
Act.
The question remains, however, whether the requested records are indeed
exempt.2 Under KRS 17.150(2), “[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. However, portions of
the records may be withheld from inspection if the inspection would disclose” specific
types of information described in subsections (a) through (d). When an agency invokes
KRS 17.150(2), “the burden shall be upon the custodian to justify the refusal of
inspection with specificity.” KRS 17.150(3).
Here, the Department merely claims the requested records are exempt under
KRS 17.150. The Department has provided no information about the status of the
prosecution or the types of exempt information purportedly contained in the records,
or otherwise described how KRS 17.150 applies to the records withheld. See
KRS 61.880(1) (an agency denying a request must cite the applicable exception and
provide “a brief explanation of how the exception applies to the record withheld”).
Thus, the Department has failed to meet its burden of proof to sustain its action. See
KRS 61.880(2)(c). Accordingly, the Department violated the Act when it denied the
Appellant’s request.
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 within 30 days
from the date of this decision. 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 proceedings. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
1
The Appellant claims that because the word “shall” is mandatory, KRS 61.878(5) requires a public
agency to disclose exempt records to another public agency. But the text in KRS 61.878(5) is “shall in
no way prohibit,” not “shall disclose.” The absence of a prohibition is a permission, not a mandate.
2
On appeal, the Appellant asserts that KRS 17.150 does not apply to an initial incident report. See,
e.g., 20-ORD-122. However, the Department has subsequently agreed to provide that document to the
Appellant, albeit in redacted form. The Appellant affirmatively states he is not seeking “unredacted”
copies of records and has not objected to any redactions the Department made to the record.
Accordingly, that issue is now moot. See 40 KAR 1:030 § 6.Daniel Cameron
Attorney General
s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#133
Distributed to:
Mr. Stephen Bratcher
Ken M. Howard, Esq.
Ms. Tiffany Vertrees
Jeremy Thompson, Chief