Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the Owensboro Police Department properly denied the March 9, 1999 open records request of John Martin, a reporter with the Owensboro Messenger-Inquirer, for copies of reports generated by the Department's new CrimeCom computer program.
By letter dated March 11, 1999, Col. Allen Dixon, Chief of Police, denied Mr. Martin's request, explaining:
Our CrimeCom reports are part of an on-going police investigation program that deals with specific crime trend analysis and planning. The information and preliminary recommendations included in these reports are discussed internally by Command Staff personnel to formulate strategies aimed at crime reduction. Public disclosure of this information and these recommendations would irresponsibly facilitate, not reduce, criminal activity.
As such your request is denied pursuant to KRS 61.878 subsection (1)(h) which states, in part, that records are exempt from the Open Records regulation if "Records of law enforcement agencies . . . 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 premature release of information . . ."
Additionally, your request is denied pursuant to KRS 61.878 subsection (1)(i) and (j) which state that records are exempt from the Open Records regulation if said records are, "preliminary drafts, notes . . ." or "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
There presently exists within the Police Department other mechanisms which would enable the public to obtain statistical information when needed. We have provided this information in the past and will continue to do so in the future.
In his letter of appeal, Mr. Wible argues that the reports have to do only with statistical analysis of activities as a group and not the investigation of specific crimes and, thus, KRS 61.878(1)(h) does not apply. He further argues that, because the statistical data does not constitute preliminary drafts or notes, recommendations, opinions, or recommended policies, KRS 61.878(1)(i) and (j) do not apply. Citing KRS 61.878(2), Mr. Wible contends the open records exceptions do not apply to statistical data about trends in city crime.
As authorized by KRS 61.880(2) and 41 KAR 1:030, Section 2, David C. Fowler, Owensboro City Attorney, on behalf of the Department, provided this office with a response to the issues raised in this appeal. Expanding on Chief Dixon's initial response, Mr. Fowler explained that the CrimeCom reports are part of an ongoing police investigation program that deals with crime trend analysis and planning that is discussed internally by the Police Command Staff that meets weekly to formulate strategies aimed at crime reduction in targeted areas of the City. He indicated that the information in the reports is not only used by beat officers and detectives in the investigation of reported crimes, but also to detect and prevent crimes from occurring. Mr. Fowler further described the CrimeCom program as follows:
CrimeCom is a crime analysis and reduction program that originated in New York City and has been implemented in a number of progressive police organizations throughout the country. Weekly CrimeCom reports consist of preliminary analytical data generated by the Police Department's Crime Analysis Unit in an effort to assist Command Staff Officers in developing strategies aimed at reducing the level of crime on specific patrol beats. These reports are based upon accurate and timely intelligence which enable the Police Department to determine effective tactics, aids in the deployment of resources and personnel, and provides a foundation for follow-up and assessment. Each week, the data, intelligence, and law enforcement tactics are reviewed and reassessed. At the end of the year, all compiled data is forwarded to the Federal Bureau of Investigation for inclusion in their annual report on crime which is released to the media and the public.
On behalf of the Department, Mr. Fowler argues that release of the statistical component of the report would irresponsibly facilitate crime by notifying would-be criminals where the City will be concentrating its resources and personnel in the detection of crime. He argues that release of the analytical data, opinions, strategies, and recommendations of the Police Command Staff would irreparably compromise prospective law enforcement and defeat the purpose for which it was intended.
Pursuant to KRS 61.880(2), this office requested a copy of the report for an in camera review. Our review of the report indicates that, generally, it can be described as being made up of two general categories. The first category provides statistical information relative to the occurrences of various types of crimes and accidents in the Owensboro area, by city-wide and individual beats, over various segments of time, such as weekly, year to date statistics, as well as other time related breakdowns. The second category provides analytical interpretations of the statistics, including opinions, targeted geographic areas, and certain enforcement directions and strategies.
We are asked to determine whether the Department's denial of the request to inspect the reports was consistent with the Open Records Act. For the reasons that follow, we conclude the Department improperly withheld access to the CrimeCom report in its entirety. We find the Department improperly denied access to the statistical portions of the report. However, we find that the Department may properly denied access to certain analytical portions of the report.
This office has consistently held that records of police and sheriff departments are, in general, subject to inspection unless specifically exempted by statute. OAG 76-478; OAG 77-102; OAG 79-582; OAG 91-131; 94-ORD-133. This would include daily logs of arrests, complaints received from citizens, and records that are compiled incident to or occurring in the law enforcement agency's daily operation which reflect how the agency is performing its daily function. OAG 91-131; 99-ORD-8.
The Department relies upon KRS 61.878(1)(h) as a basis for denying access to the report. KRS 61.878(1)(h) authorizes the nondisclosure of:
Records 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. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
This language has generally been interpreted as being applicable to such records as notes, witness statements, and documentary evidence gathered in the course of an investigation into a specific incident or incidents involving statutory or regulatory violations. This interpretation finds support in the next full sentence following this language which states, "unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action." This statement contemplates the existence of an actual, ongoing investigation which is concluded by enforcement action or the decision to take no action.
In the instant case, the CrimeCom report, in our view, is not a record covering a specific investigation, but reflects a compilation of city-wide crime statistics and a review of those statistics in analyzing prospective and past enforcement actions. Accordingly, we conclude that the Department has not established that the entire report qualifies for exclusion under KRS 61.878(1)(h).
While we are not persuaded that the CrimeCom qualifies for exclusion under KRS 61.878(1)(h), we agree with the Department that the Open Records Act was not intended to facilitate criminal conduct by compelling indiscriminate disclosure of law enforcement strategies and tactics to the public. Although the Department articulated a basis for denying access to portions of the CrimeCom report, it did not cite the relevant exception supporting nondisclosure, namely KRS 61.872(6). Based on this office's reasoning in 95-ORD-121, we believe that the Department may withhold those portions of the report relating to formulated strategies aimed at crime reduction in targeted areas of the City, pursuant to KRS 61.872(6), if the information contained therein could be used to circumvent or violate the law thus necessitating an immediate revision of policy.
In its responses, the Department argues that release of the analytical data, opinions, strategies, and recommendations of the Police Command Staff would irreparably compromise prospective law enforcement and defeat the purpose for which it was intended.
In 95-ORD-121, the Attorney General held that a jail could withhold its policy and procedures manual pursuant to KRS 61.872(6) "if release of [the manual] would compromise a significant governmental interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of [the manual] , or information contained therein." 95-ORD-121, p. 8. A request for a policy and procedures manual, this office observed:
may be treated as unreasonably burdensome within the meaning of KRS 61.872(6) which provides:
Nondisclosure is warranted in the present case to the extent that it protects those portions of the manual containing policies and procedures, which, if revealed, would enable persons to impede the goals for which the policies and procedures were adopted, to wit, the safety and security of a detention facility. In more general terms, and with respect to other public records . . . [for example, records containing the account number of a public official's credit card, or the combination on a government vault or safe] nondisclosure is warranted if the records could be used to circumvent or violate the law. If the agency can establish, by clear and convincing evidence, that an application for public records would place an unreasonable burden on it because the agency would be forced to overhaul an existing system each time the records were requested and released, it may properly invoke this provision. The clear and convincing standard which is built into this provision is sufficient, in our view, to discourage abuse by public agencies. In other words, the provision is expansive enough to authorize judicious use, where warranted, but narrow enough to prevent profligate use, where unwarranted.
Moreover, it seems incongruous to attribute to the General Assembly an intention to require public agency revelation of internal manuals, or other public records, which would facilitate violation of the law and undermine its enforcement. In the instant appeal, disclosure of portions of the Bullitt Count Jail Policy and Procedures Manual affecting the security and safety of inmates, staff, and the public would significantly increase the risk of harm to these individuals and facilitate escape. This cannot have been the legislature's goal. Consistent with the rule of statutory construction articulated in Renaker v Commonwealth, Ky. App., 889 S.W.2d 819 (1994) and elsewhere, that statute should not be construed so as to bring about an absurd or unreasonable result, we conclude that the Open Records Law must be given a construction that is reasonable, and promotes the public's interest in security and administrative order. To that end, we find that the law, by and through the cited exemptions, prohibits disclosure of public records containing information the disclosure of which would significantly compromise that interest. Pursuant to KRS 61.878(4), requiring a public agency to separate excepted material from nonexcepted material and to make the latter available for examination, the Bullitt County Jail is directed to release to Mr. Houston those portions of its Policy and Procedures Manual which do not implicate security concerns, within the contemplation of KRS 197.025, and whose disclosure would not necessitate an immediate revision in policy and practice relative to the preservation of order in the facility.
95-ORD-121, p. 8,9.
Adopting the reasoning of 95-ORD-121, this office, in 97-ORD-129, concluded that a request for a copy of the Hardin County Task Force's policy and procedures manual, specifically those portions of the manual dealing with the use of informants, implicated many of the same concerns raised in 95-ORD-121. In so holding, we stated, quoting in part from 95-ORD-121,:
Disclosure to the public "would necessarily allow those members of the public who want to engage in such illegal activities the opportunity to learn law enforcement agencies (sic) investigative tactics in order to better hide and protect their illegal activities." As a consequence, the Task Force would be forced to overhaul existing policies and procedures each time the records were requested and released. While Mr. Dunaway's purpose in requesting access to the manual is no doubt entirely legitimate, if he is permitted access to it so too must all other requesters, whatever their purpose may be. As we noted in 95-ORD-121, it cannot have been the legislature's intention to facilitate violation of the law and undermine its enforcement by requiring public agency revelation of internal manuals.
In 97-ORD-129, we remanded the matter back to the Task Force with instructions that it could properly withhold those portions of the manual the disclosure of which would necessitate an immediate revision in policy and practice to insure personal and public security and avoid subversion of the law, under authority of KRS 61.872(6); KRS 61.878(4); and 95-ORD-121.
We conclude the same authority applies to the instant appeal. We remand this matter back to the Department to proceed under these provisions of the Open Records Act, and the open records decisions construing them, rather than KRS 61.878(1)(h), in releasing the nonexempt portions of the CrimeCom reports to Mr. Wible. KRS 61.872(6); KRS 61.878(4); 95-ORD-121; 97-ORD-129.
The Department may redact those portions of the report which would disclose geographic targets, investigative tactics, and recommendations of the Police Command Staff and which would irreparably compromise prospective law enforcement and defeat the purpose for which the report was intended. To the extent that any of the analytical matters are preliminary opinions or recommendations, they would fall within the class of exempt matter which may be redacted under KRS 61.878(1)(i) and (j).
KRS 61.878(2) provides:
No exemption in this section shall be construed to prohibit disclosure of statistical information not descriptive of any readily identifiable person.
The statistical portion of the report, including maps pinpointing the location where crimes, accidents, and traffic enforcement occurred fall within this class of records subject to disclosure under KRS 61.878(2). Accordingly, we conclude that the Department must provide access to portions of the report which discloses statistical data relative to crimes in the City.
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.