Request By:
Paul V. Guagliardo
Deputy Director of Law
City of Louisville
City Hall
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl Miller, Assistant Attorney General
As Deputy Director of Law of the City of Louisville, you have requested an opinion of the Attorney General on the following general question -- How should the police department respond to a person who inquires whether he is under surveillance by the police?
You state that the Louisville Division of Police has taken the position that the only response it will make is "No comment" in every case. The reason for that position is that if the person is under surveillance, such information is secret and such a fact will not be acknowledged. On the other hand, if a person is not under surveillance and is so told, any other response by the Department to another person would imply that that person is under surveillance.
Your question is prompted by an actual case where a person, believing that he may be under surveillance, has requested to be informed if he is under surveillance, if there is a tap on his phone and if there is a court order on record. The person making the inquirty couched his request in the terms of the Open Records Law -- that is, that he is entitled to have a copy of any file on him. The first question to be decided then is whether such information is covered by KRS 61.870-61.884, the Kentucky Open Records Law.
We believe that there are four exemptions in KRS 61.878 (1) which exclude any records of police surveillance from the requirement of mandatory disclosure. The are the following:
(1) The exception provided by (f) of records the release of which would cause "premature release of information to be used in a prospective law enforcement action or administrative adjudication." This exception also provides that "public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action."
(2) Exemption (g) "preliminary drafts, notes, correspondence with private individuals. . ."
(3) Exemption (h) "preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
(4) Exemption (j) "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly." We think that this exemption applies because of the provision of KRS 17.150(2) which reads:
"Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection provided prosecution is completed or a determination not to prosecute has been made. However, portions of such records may be withheld from inspection if such 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 such records to be used in a prospective law enforcement action. "
We would insert here a word of caution -- we are discussing in this opinion only records of the surveillance or investigation of persons the police suspect of criminal activity. What we say here has no application to the question of the openness of the police log or incident report (See OAG 77-102) or the arrest record of an individual (See OAG 76-511).
It is our belief that the police are entitled and obligated to make secret investigations, subject to constitutional protections, when they believe that criminal activity is involved; that it is the legislative intent of the Open Records Law to allow the exemptions we have mentioned above to police departments in their investigative work. We, therefore, agree with you that a "No comment" response is a proper response which can be made to a person who inquires as to whether he is under surveillance. If the police were required to answer such inquiries factually, they would reassure some people, disturb other people, and tip off suspects. Criminals could capitalize on such a right by making daily inquiries as to whether the police had any file on them or had them under surveillance.
While we believe that all of the statutes we have cited herein have a bearing on the question, we would emphasize as most significant the fact that any data pertaining to surveillance and investigation would necessarily be preliminary data, would involve conversations or correspondence with private individuals, would contain preliminary recommendations and theories and opinions. Since such records are exempt from mandatory public disclosure, we see no need for the police response to make any indication of whether any such records in fact exist.