Request By:
Chief Jerry Harris
Middlesboro Police Department
Post Office Box 601
Middlesboro, Kentucky 40965
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Ms. Joyce Thacker has appealed to the Attorney General, pursuant to KRS 61.880, the Middlesboro Police Department's handling of her May 6, 1992, request for certain records in the Department's custody. Those documents are identified as "copies of the investigation into [Ms. Thacker's] son's death." By this, we assume she means any records generated in the course of that investigation.
Ms. Thacker indicates that on May 7, 1992, you advised her that you had taken the records to the Middlesboro City Attorney, Mr. Charles Sigmon, Jr., for review. She further indicates that as of May 13, 1992, she had received no response to her request. It is her position that the Middlesboro Police Department's failure to respond within three working days constitutes a violation of the Open Records Law.
On behalf of the Department, Mr. Sigmon responded to Ms. Thacker's request on June 1, 1992. With the exception of one document, he released the entire file compiled by the Middlesboro Police Department in the course of their investigation. Relying on KRS 61.878(1)(j) and KRS 610.320(3), he withheld the statement taken of a witness, who is also a minor. KRS 610.320(3) provides that "All law enforcement records regarding children who have not reached their eighteenth birthday shall not be opened to scrutiny by the public . . . ." That provision, he maintains, is incorporated into the Open Records Act by operation of KRS 61.878(1)(j), which authorizes the nonrelease of public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly.
Ms. Thacker asks that we review your handling of her request to determine if your actions were consistent with the Open Records Law. For the reasons set forth below, we conclude that your response, although procedurally deficient, was otherwise proper.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. The statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays, and legal holidays) after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any records shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Your response to Ms. Thacker's request was prodecurally deficient to the extent that it was not issued within three working days. Some seventeen workdays elapsed between the date of the request and the date of Mr. Sigmon's response. Allowing for delays in the mail, the response was nevertheless untimely. If you have made arrangements with the City Attorney to review the requested documents before making a determination as to the propriety of release, we suggest that you promptly deliver those documents to him to insure that a response is issued within three working days from your receipt of the request.
Turning to the issues raised in this appeal, we find that you properly withheld the witness statement of a minor, although not for the reasons stated. It is your position that because the witness is a minor, you are prohibited from disclosing his statement by KRS 610.320(3), which bars from public scrutiny "[a]ll law enforcement records regarding children who have not reached their eighteenth birthday . . . ." You maintain that this provision is incorporated into the Open Records Act by operation of KRS 61.878(1)(j), relating to public records the disclosure of which is restricted by enactment of the general assembly. However, in reviewing an open records appeal, the Attorney General is not limited to the exception relied on by the agency, but may consider all of the exceptions in the statutes. OAG 82-450; see also , OAG 82-169.
Generally, records of law enforcement agencies or agencies involved in administrative adjudications must be treated as open records after enforcement action is completed or a decision is made to take no action, unless those records are exempted by other provisions of KRS 61.870 to 61.884. KRS 61.878(1)(f).
This Office has consistently recognized that witness statements are exempt from public inspection pursuant to KRS 61.878(1)(g) and (h). OAG 84-249; OAG 84-298; OAG 85-95; OAG 85-135; and OAG 86-19. (Copies enclosed.) Those provisions exclude from the mandatory disclosure provisions of the Open Records Act:
(g) Preliminary drafts, notes, and correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency;
(h) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended;
Thus, in OAG 85-95, at p. 3, we observed:
[A] statement is a preliminary record in the internal investigative files of the police department and excluded, from those records subject to public inspection, by KRS 61.878(1)(g) and (h) unless it is incorporated into any notice of final action by the police department.
See also ,
City of Louisville v. The Courier-Journal and Louisville Times Co., Ky.App., 637 S.W.2d 658 (1982) (holding that investigative files are exempt from public inspection as preliminary documents under KRS 61.878(1)(g) and (h) unless adopted into police department's final action). We believe these authorities are dispositive of the present appeal.
Because we find that KRS 61.878(1)(g) and (h) authorize nondisclosure of witness statements, we need not address the propriety of your invocation of KRS 61.878(1)(j) and KRS 610.320(3).
As required by statute, a copy of this opinion will be sent to the requesting party, Ms. Joyce Thacker. Ms. Thacker and the Middlesboro Police Department may challenge it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5).