Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Jefferson County Corrections Department properly relied on KRS 61.878(1)(h) in denying Darryl Stewart's September 6, 2000, request for a copy of a videotape made by the Department of an incident involving Mr. Stewart's son, Matthew, that occurred in the basement of the Hall of Justice during the late night hours of Friday, August 25, and the early morning hours of Saturday, August 26. For the reasons that follow we conclude that the Department's reliance on the cited exception was misplaced, and that it is obligated to furnish Mr. Stewart with a copy of the tape upon prepayment of a reasonable copying charge.
In a response dated September 11, 2000, Michael D. Horton, Chief of the Jefferson County Corrections Department, acknowledged that on September 5, 2000, Mr. Stewart was permitted to view the disputed videotape in the Department's administrative offices, but advised that since he viewed the tape the Department "received notice that the Federal Bureau of Investigation has initiated an official investigation into [Mr. Stewart's] complaint to determine whether there has been a civil rights violation." Relying on KRS 61.878(1)(h), Chief Horton denied Mr. Stewart's request for a copy of the tape stating that in "the opinion of [the] Department, which also has an interest in the FBI's investigation, . . . the premature release of this videotape would be detrimental pending completion of the FBI's investigation." This appeal followed.
In a supplemental response directed to this office following commencement of Mr. Stewart's appeal, Suzanne D. Cordery, General Counsel for the Jefferson County Corrections Department, cited 94-ORD-56 explaining that the Department relied on its reasoning "in determining whether the requested record was exempt from public inspection pursuant to KRS 61.878(1)(h)." We believe that the appeal that gave rise to the cited decision is factually distinguishable from the appeal before us.
In 94-ORD-56, the Attorney General affirmed the Harrison County School System's denial of a request for a tape recording of a meeting pending completion of an investigation involving the subject matter of the tape recording by the Cabinet for Human Resources and the Kentucky State Police. In support, we cited OAG 83-39 for the proposition that "where there is concurrent jurisdiction between the two agencies, and where they both have an interest in the investigation, the records of one agency may be withheld if the other agency is actively involved in an investigation of a matter relative to those records." 94-ORD-56, p. 3. In response to the requester's claim that the school system did not comply with KRS 61.880(1), insofar as it provided no explanation of how KRS 61.878(1)(h) applied to the record withheld, and therefore did not meet its statutory burden of proof, the Attorney General opined that its denial was only "minimally adequate," and should have been "more thorough and specific." 94-ORD-56, p. 4.
The degree of specificity contemplated by the legislature in KRS 61.880(1), the Kentucky Court of Appeals in Edmondson v. Alig, Ky. App., 926 S.W.2d 856 (1996), and this office in 94-ORD-56, was subsequently evidenced in 97-ORD-52, an open records decision affirming the Cabinet for Public Protection and Regulation's denial of a request for records, turned over to the Office of the Attorney General as part of an investigation of the Cabinet's Department of Alcohol Beverage Control, on the basis of KRS 61.878(1)(h). There, we found that the Attorney General "requested the Cabinet not to release copies of the records" since premature release and inspection "could harm the investigation and prospective law enforcement action by divulging information to subjects yet to be interviewed and which may have a bearing on the outcome of the case." 94-ORD-56, p. 4.
The need for this degree of specificity is particularly compelling when an agency relies on KRS 61.878(1)(h) as the basis for denying access to public records. Thus, in 95-ORD-95, and numerous decisions subsequent thereto, this office observed:
In order to successfully raise KRS 61.878(1)(h), a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met .
95-ORD-95, p. 2, 3 (emphasis added); 97-ORD-93; 99-ORD-162 (and open records decision cited therein at page 4).
The record before us is devoid of evidence that the FBI asked the Jefferson County Corrections Department to withhold the videotape pending resolution of its investigation. We have determined, through conversations conducted with representatives of the FBI on October 4, that the investigating agent has concluded his report. In response to our direct inquiries, those representatives confirmed that their investigation would not be compromised by release of a copy of the tape to Mr. Stewart. Clearly, the Corrections Department has "an interest in the FBI's investigation," but it cannot persuasively argue that it would be "harmed by premature release" of the tape inasmuch as it has already permitted Mr. Stewart to view it. For these reasons, we conclude that the Jefferson County Corrections Department's reliance on KRS 61.878(1)(h) was misplaced, and that it is required by the Open Records Act to furnish Mr. Stewart with a copy of the tape upon prepayment of a reasonable copying charge based on its actual costs, not including its staff costs. KRS 61.874(3).
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 proceedings.