Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky State Police's (KSP) denial of Wayne Hughes's open records request for copies of KSP radio logs and/or tapes for "the Henderson and Madisonville Post of the Kentucky State Police between the hours of 10:00 AM and 11:00 AM on Sunday, March 29, 1998," and the identification of the person driving KSP cruiser # 0471 during that time on the Western Kentucky Parkway, and "the Elizabethtown Post of the Kentucky State Police between the hours of 6PM and 7PM on Tuesday, May 5, 1998."
Diane H. Smith, Official Custodian of Records, KSP, denied each of Mr. Hughes requests, on identical grounds, stating:
Please be advised that the information you seek is part of an ongoing Internal Affairs investigation. The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to a particular provision. KRS 61.878(1) (1) exempts records made confidential by separate statute. KRS 17.150(2) exempts law enforcement files or cases that have not been closed. The records you seek are part of an open case and are exempt from inspection.
In his letter of appeal, Mr. Hughes stated, in part, that in a previous open records request of an identical case of a Speeding Complaint against a trooper, he had been provided the information promptly when he requested it.
After receipt of the letter of appeal, we sent a "Notification to Agency of Receipt of Open Records Appeal" to the KSP and enclosed a copy of Mr. Hughes's letter. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Elizabeth D. Baker, Legal Counsel, KSP, provided this office with a response to the issues raised in the appeal. In the response, Ms. Baker supplemented the KSP's initial response by citing KRS 61.878(1)(h) and KRS 61.878(1)(i) and (j), [miscited as KRS 61.878(1)(h) and (i)], as additional bases for denying the requested radio logs and tapes.
Ms. Baker argues that the requested radio logs and tapes are part of the investigative files of an ongoing Internal Affairs investigation and as such are exempt from disclosure. She further states that a previous request by Mr. Hughes for other radio logs and tapes had been granted, but explains this was by mistake as the custodian of the records had not been notified that the records were part of an ongoing Internal Affairs investigation.
After receipt of the KSP's supplemental response, Mr. Hughes submitted a letter to this office in which he stated, in part, that the KSP's denial "appears to be completely based on the contention that I am asking for a copy of Internal Affairs Investigative files or other documents generated as a result of their investigative efforts. I am not asking for such records. I am simply asking for those records which are normally open records to the public."
We are asked to determine whether the KSP's denial of the requested radio logs and tapes was consistent with the Open Records Act. For the reasons which follow, we conclude that although the KSP may properly withhold from disclosure the file of its ongoing Internal Affairs investigation, it must provide Mr. Hughes with copies of the requested radio logs and tapes.
KRS 61.878(1)(l) states that among the records which are excluded from public inspection are: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
KRS 17.150(2) provides in part for the nondisclosure of intelligence and investigative reports maintained by criminal justice agencies, prior to the completion of the prosecution or the decision not to prosecute is made.
In addition, KRS 61.878(1)(h) authorizes a law enforcement agency to withhold from public inspection its investigative files while the case in question is pending.
KRS 61.878(1)(i) and (j), authorize the nondisclosure of:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
These exemptions are intended to protect the integrity of the agency's internal decision-making by encouraging the free exchange of opinions and recommendations. They have thus been interpreted to authorize nondisclosure of preliminary reports and memoranda containing the opinions, observations, and recommendations of personnel within an agency. 95-ORD-86. If, however, the predecisional documents are incorporated into final agency action, they are not exempt.
It is the decision of the Attorney General that the KSP properly denied access to its Internal Affairs investigative file, as the investigation has not been concluded. Once the investigation has been completed, the complaint which initiated the investigation and the report setting forth the final action taken by the public agency relative to the investigation would be open for inspection.
City of Louisville v. Courier-Journal and Louisville Times, Ky. App., 637 S.W.2d 658, 659 (1982); 95-ORD-86. The investigative files remain preliminary unless they are incorporated into and made a part of the agency's final action.
This office has, however, previously held that police radio transmission tapes and dispatch logs are, in general, open for public inspection. OAG 89-11; OAG 89-20; 94-ORD-133.
In OAG 89-11, this office held that the Jefferson County Police Department improperly denied access to a tape recording of police radio transmissions surrounding a criminal event. In reaching such result, we stated:
In the view of this office, "records compiled in the course of detecting and investigating statutory violations" (as used in KRS 61.878(1)[h]) means those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process. Such phraseology does not encompass electronic recordings of general radio traffic of a police agency, not made uniquely in a specific detection or investigation process, which were "segregated" in connection with an investigation.
Moreover, in OAG 89-11, we noted that even if there is reasonable disagreement as to whether the tape was compiled in the process of detecting and investigating statutory violations, there must still be a showing that the agency would be harmed by "premature release of information to be used in a prospective law enforcement action or administrative adjudication." KRS 61.878(1)(h). In the instant appeal, no showing has been made of any harm which might occur if inspection of the radio logs and tapes is allowed.
In OAG 89-20, we held the City of Winchester improperly denied a request to inspect radio transmission logs generated by the Winchester Police Department, on the basis of what is now codified as KRS 61.878(1)(h). In so holding, we explained the nature of the logs as follows:
Police dispatch logs are typically seriatim notations, commonly of a summary character, of police dispatches and disposition codes, compiled collaterally to, and not integrally in the process of, detecting and investigating statutory violations, in contrast to, for example, an investigator's notes. In order to be exempted from inspection pursuant to KRS 61.878(1)[h], particulars regarding given notations on a log would have to be articulated in terms of the requirements of the statute.
We conclude that the KSP improperly withheld disclosure of the requested police radio logs and tapes. Although the records may be included in the investigative file, they were made collaterally to, and not as an integral part of the Internal Affairs investigation. OAG 89-11; OAG 89-20. Accordingly, these records should be made available for Mr. Hughes's inspection.
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. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceeding.