24-ORD-126
May 24, 2024
In re: Michele Cecil/Hancock County Sheriff’s Office
Summary: The Hancock County Sheriff’s Office (“the Sheriff’s Office”)
violated the Open Records Act (“the Act”) when it failed to issue a
written response to a request to inspect records within five business
days. The Sheriff’s Office also failed to meet its burden to support
withholding the requested records under KRS 61.878(1)(h).
Open Records Decision
On April 4, 2024, attorney Michele Cecil (“Appellant”) submitted a request to
the Sheriff’s Office seeking “[a]ny and all incident investigation reports, photographs,
drawings, diagrams, sketches, surveys, notes, memoranda, correspondence,
statements, interviews, other documents, video tapes, transcripts, referrals, and tape
recordings of any and all 911 calls generated” regarding an automobile accident
involving her client on June 1, 2022, “as well as any witness statements, identities
and contact information.” After receiving a telephone message from the Sheriff’s
Office stating there was no report of the accident, the Appellant resubmitted her
request on April 5, 2024, with additional information about the driver and location.
The Appellant submitted her request a third time on April 10, 2024, and sent a follow-
up letter to the Sheriff’s Office on April 17, 2024. Having received no written response
to her request by April 25, 2024, the Appellant initiated this appeal.
Upon receiving a request to inspect public records, a public agency must
determine within five business days whether to grant the request or deny it and must
issue a response in writing within that five-day period. KRS 61.880(1). Here, the last
day for the Sheriff’s Office to respond to the Appellant’s request was April 11, 2024.
On appeal, the Sheriff’s Office admits it did not issue a written response. Accordingly,
the Sheriff’s Office violated the Act.
After this appeal was initiated, the Commonwealth’s Attorney for the 38th
Judicial Circuit submitted a letter stating that “the materials of the investigation” by
the Sheriff’s Office “have been turned over to [his] office for consideration ofpresentation to a grand jury.” The Commonwealth’s Attorney further stated,
“Pursuant to KRS 61.878, records or information compiled and maintained by [the
Commonwealth’s Attorney’s] office pertaining to criminal investigation/litigation are
exempted from the [Act] and remain exempt after the action/investigation are [sic]
completed. Records of law enforcement agencies . . . are also exempt under 61.878(h)
[sic] when complied [sic] in the process of investigating a crime when disclosure would
harm the agency by premature release of information to be used in a prospective law
enforcement action.”
Under KRS 61.878(1)(h), “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 [Act] and shall remain exempted
after enforcement action, including litigation, is completed or a decision is made to
take no action.” That clause, however, only applies to records requested from the
prosecutor. See City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 850 n.5
(Ky. 2013).1 Here, the Appellant requested the records from the Sheriff’s Office.
In its response to this appeal, the Sheriff’s Office claims that “the records are
exempt from disclosure pursuant to KRS 61.878(h)” [sic] and “consistent with that
same statute and paragraph, the records in possession of the officer shall be open
after the criminal action is complete or a decision is made to take no action.” In
addition to totally exempting a prosecutor’s criminal litigation file, KRS 61.878(1)(h)
also exempts from inspection “[r]ecords 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.” This exemption consists of
three elements. First, the records must be “records of law enforcement agencies or
agencies involved in administrative adjudication.” Second, the agency must show the
records were “compiled in the process of detecting and investigating statutory or
regulatory violations.” Finally, the agency must show release of the records “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.”
Here, the first two elements of KRS 61.878(1)(h) are clearly satisfied. However,
the Sheriff’s Office has not attempted to satisfy the third element, i.e., that disclosing
1
Some prior decisions of the Office have sustained a law enforcement agency’s denial of a request
on the grounds that the records had been turned over to the Commonwealth’s Attorney for prosecution.
See, e.g., 13-ORD-016; 93-ORD-97. Those decisions, however, were not based on KRS 61.878(1)(h), but
on the fact that the law enforcement agency had given away its only copy of the records and thus no
longer had them in its possession. The Sheriff’s Office has confirmed that is not the case here.the records will harm its investigation. When relying on KRS 61.878(1)(h), a law
enforcement agency must establish that, “because of the record’s content, its release
poses a concrete risk of harm to the agency in the prospective action. A concrete risk,
by definition, must be something more than a hypothetical or speculative
concern.” City of Fort Thomas, 406 S.W.3d at 851. Further, the agency must “identify
and review its responsive records, release any that are not exempt, and assign the
remainder to meaningful categories. A category is meaningful if it allows the court to
trace a rational link between the nature of the document and the alleged [harm to
the agency].” Id. (quotations omitted). “The agency should provide the requesting
party . . . with sufficient information about the nature of the withheld record (or the
categories of withheld records) and the harm that would result from its release to
permit the requester to dispute the claim.” Id. at 852. But here, the Sheriff’s Office
has made no effort to explain how releasing the records will harm its investigation.
In an appeal under the Act, the public agency bears the burden of proof to
sustain its position. KRS 61.880(2)(c). Because the Sheriff’s Office has not proven the
necessary elements of the exemption under KRS 61.878(1)(h), the Office finds it
violated the Act in denying the Appellant’s request.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#220
Distributed to:
M. Michele Cecil, Esq.
Paul L. Madden, Jr., Esq.
Blake R. Chambers, Esq.
Dale Bozarth, Sheriff