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 City of Louisville Division of Police violated provisions of the Open Records Act in responding to WHAS-TV reporter Mark Hebert's requests to inspect records relating to the May 18, 2001, traffic accident involving a Louisville police officer. For the reasons that follow, and upon the authorities cited, we conclude that the Division's response constituted a partial violation of the Act.
On June 6, 2001, Louisville Division of Police Public Information Specialist Alicia M. Smiley denied Mr. Hebert's June 5 request to inspect:
1. Any correspondence from Officer Pat Timmons to his superiors concerning Officer Highsmith's wreck, Major Burbrink's involvement and Timmons ability to competently fill out the incident report.
2. Any correspondence from Major Burbrink to his superiors regarding the Highsmith wreck and his actions at the scene.
3. Any photos taken at the scene by any witness or police.
4. Any statements by the witness who followed Highsmith away from the scene of the accident and called police on his cell phone.
Ms. Smiley explained that the records identified in Mr. Hebert's request "are all part of an ongoing investigation," and denied access to them on the basis of KRS 61.878(1)(h) and KRS 17.150(2). On June 11, 2001, 1 Ms. Smiley partially denied an earlier open records request, submitted by Mr. Hebert on May 31, in which he demanded access to:
1. All recorded incoming phone calls regarding traffic accidents on 5/18/01 from 10:15 to 11:30 p.m., suspects in those crashes and witness statements or calls.
2. All recorded dispatches to, and responses from officers from 10:15 p.m. to 11:30 p.m. on 5/18/01.
3. A copy of accident report 01015848.
4. Photos of Officers Pat Timmons and Ruben Highsmith.
5. All previous disciplinary actions, complaints and results of those complaints against Officer Highsmith.
6. All vehicle incident reports and equipment damage reports filed by Officer Highsmith.
She indicated that the records identified in numbers one and two of his request "are part of an ongoing investigation," and denied this portion of his request on the basis of KRS 61.878(1)(h) and KRS 17.150(2). With reference to the records identified in request three, four, and five, Ms. Smiley explained that they had "already been provided to WHAS-11 reporter Matt Pime." In closing, she advised Mr. Hebert that she had been "unable to locate any vehicle incident or equipment damage reports related to Officer Highsmith."
On appeal, Mr. Hebert challenges the Division's position, arguing that the Division erroneously equates a criminal investigation with an internal affairs investigation. He observes:
[The Division is] using the guise of an "investigation" to refuse to turn over documents and recordings that would normally be made public. I believe past OAG opinions treat "internal" and "criminal" investigations differently. These opinions give wide latitude to protect public information in "criminal" cases but do not provide the same protections in "internal" investigation cases.
It is Mr. Hebert's position that records generated by the Division of Police in the normal course of business may not be withheld pending conclusion of an internal affairs investigation. How else, he queries, is the public to ascertain "if the recordings and documents requested are really being withheld because of an internal investigation, or just to cover up potentially embarrassing materials for several months until 'the story cools off?'"
In a supplemental response directed to this office following commencement of Mr. Hebert's appeal, Stephanie Harris, Assistant Director of Law for the City of Louisville, amplified on the Division's position. By way of factual background, she explained:
On or around May 18, 2001, an accident occurred at the intersection of First and Chestnut Street. At the time of the accident, Louisville Police Officers were advised that the suspect was walking away from the scene of the accident. It was later noted (at the scene of the accident) that the suspect was a Louisville Police officer. An internal investigation was likely because the suspect was a Louisville police officer and in addition, left the scene of the accident. Based upon these facts, a criminal investigation could have been anticipated as well.
In support of the Division's reliance on KRS 61.878(1)(h) to justify partial nondisclosure of the records requested by Mr. Hebert, Ms. Harris noted that the Louisville Division of Police satisfies the first requirement of that exemption insofar as it is "a law enforcement agency that investigates statutory and regulatory violations." Continuing, she observed:
The issue in this appeal is whether the records requested by Mr. Hebert were compiled in the course of detecting and investigating statutory violations . . . . Although there was not a criminal investigation, an internal affairs investigation was initiated by the Chief of Police. The records requested by Mr. Hebert are part of the investigation. The investigators have indicated that the premature disclosure of these records could jeopardize the investigation. When there are issues of timing, witness recollections and other potential discrepancies, recorded calls, written memos and photographs can become crucial to an investigation.
Acknowledging that Mr. Hebert is entitled to review "those records not otherwise exempted" upon conclusion of the Division's investigation, Ms. Harris concluded that for the present, his "right to know" is not [sic] outweighed by the agency's interest that its ongoing investigation is not compromised."
Ms. Harris did not elaborate on the Division's argument that records relating to its ongoing internal affairs investigation are excluded from public inspection by operation of KRS 17.150(2). 2 In City of Louisville v. Courier-Journal and Louisville Times Co., Ky. App., 637 S.W.2d 658, 659 (1982), the Kentucky Court of Appeals held that KRS 17.150 did not apply to internal affairs investigatory records, and therefore could not be relied upon as a basis for requiring disclosure of records of a closed investigation. The court reasoned:
KRS 17.150 relates to access upon request for reports by law enforcement officers and criminal justice agencies. A reading of that statute, however, makes clear that its application is to matters relating to dealings with crimes or criminals, not administrative matters such as that which we are presently considering.
Internal Affairs, as stipulated, may investigate criminal matters. Nevertheless, such is done to the end that a determination be made as to whether an administrative rule or regulation were broken, not that a criminal prosecution be undertaken.
Although KRS 17.150(5) provides for common remedies by establishing that "[t]he provisions of KRS Chapter 61 dealing with administrative and judicial remedies for inspection of public records and penalties for violations thereof shall be applicable to this section," such does not automatically equate investigative reports relating to prosecutions [KRS 17.150(2)] with those compiled for administrative adjudications [KRS 61.878(1)(h)]. These remain separate matters.
Accordingly, we too conclude that KRS 17.150 "is inapplicable to the facts at hand." Id.
In City of Louisville, above, the police department invoked KRS 61.878(1)(f), now (1)(h), in defense of its actions. That exception 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.
Because the records at issue in that case related to closed investigations, and investigatory records of law enforcement agencies are releasable under the exception after enforcement action is completed or a decision is made to take no action "unless provision for exemption otherwise [has] been made," id., the court "look[ed] . . . to other subsections of KRS 61.878(1)(l) to determine whether that requested by the Courier-Journal [was] exempt from public demand." Id. There, as in numerous open records opinions involving closed investigations that have echoed its outcome, the court concluded that "subsections (g) and (h) [now (i) and (j)] . . . protect the Internal Affairs reports from being made public . . . [unless] the Chief adopts its notes or recommendations as part of his final action." Id. KRS 61.878(1)(i) and (j) permit public agencies to withhold:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Applying these exceptions to the records in dispute, the court concluded that the "preliminary characterization (of an internal affairs investigative report) is lost to the extent that the Chief adopts the investigator's notes or recommendations." Id. So too, the preliminary characterization of the complaints that spawn the investigations is forfeited "inasmuch as whatever final actions are taken necessarily stem from them . . . ." Id. at 660.
The appeal before us involves access to records relating to an active internal affairs investigation, some generated before the incident occurred, some generated contemporaneously to the incident that gave rise to the investigation, some generated after the investigation into the incident was launched, and some generated after the incident occurred but before the investigation was launched. The Division indirectly acknowledged its duty to disclose a copy of the accident report created shortly after the accident occurred, photographs of officers Pat Timmons and Ruben Highsmith, and previous complaints and disciplinary actions against Officer Highsmith and the results of those actions, by releasing these records to Mr. Hebert's colleague at WHAS-11, Matt Pime. Although we do not believe that disclosure of these records to Mr. Pime necessarily relieved the Division of its duty to honor Mr. Hebert's request, his appeal focuses on the broader category of records generated contemporaneously to the incident, after the Chief of Police directed the commencement of an internal affairs investigation, and in the intervening period. These records apparently consist of:
. All recorded incoming phone calls regarding traffic accidents on 5/18/01 from 10:15 p.m. to 11:30 p.m., suspects in these crashes, and witness statements or calls;
. All recorded dispatches to, and responses from officers from 1:15 p.m. to 11:30 p.m. on 5/18/01;
. Any correspondence from Officer Pat Timmons to his superiors concerning Officer Highsmith's wreck, Major Burbrink's involvement, and Timmons' ability to completely fill out the incident report;
. Any correspondence from Major Burbrink to his superiors regarding the Highsmith wreck and his actions at the scene;
. Any photos taken at the scene by any witness or police;
. Any statement by the witness who followed Highsmith away from the scene of the accident and called police on his cell phone. 3
Mr. Hebert reluctantly acknowledged that records generated after the internal affairs investigation was launched may be withheld until after enforcement action is completed or a decision is made to take no action, but demands the right to inspect records generated by the Division of Police in the normal course of business and thus collaterally to the investigation, and not as an integral part thereof. The Division responds that in view of the likelihood that either an administrative or criminal investigation would be launched, given the circumstances surrounding the accident and the involvement of a Louisville police officer, all records concerning the incident that were generated at the time of, or after, its occurrence may be characterized as "records of [a] law enforcement agenc[y] . . . that were compiled in the process of detecting and investigating statutory or regulatory violation . . . ." The Division postulates that premature disclosure of these records could jeopardize the internal affairs investigation insofar as recorded calls, memos, and photographs are crucial to resolving discrepancies concerning timing and witness recollection.
It is the opinion of this office that the Division of Police construes KRS 61.878(1)(h) too broadly, and that neither that exception, nor KRS 61.878(1)(i) and (j), authorize nondisclosure of all records pertaining to the accident. In our view, the Division is obligated to disclose recorded incoming calls regarding traffic accidents on May 18, 2001, from 10:15 p.m. to 11:30 p.m., recorded dispatches to, and responses from, officers from 10:15 p.m. to 11:30 p.m. on May 18, 2001, photos taken at the scene by any witness or police, and statements by the witness who followed Officer Highsmith away from the scene of the accident and called the police on his cell phone. Because these records were not "actively, specifically, intentionally, and directly compiled as an integral part of a specific detection or investigation process," OAG 89-11, p. 4, and because the professed harm that would flow from premature disclosure consists of little more than a bare claim, we find that KRS 61.878(1)(h) does not authorize nondisclosure of these records. Nor, in our view, do KRS 61.878(1)(i) and (j). The temporary protection from disclosure afforded by the latter two exceptions does, however, extend to correspondence from Officer Timmons to his superiors concerning Officer Highsmith's wreck, and correspondence from Major Burbrink to his superiors concerning this incident. These records qualify for exclusion from public inspection as preliminary memoranda in which opinions are expressed under KRS 878(1)(j) until final action is taken in this matter by the chief of police, and then forfeit their preliminary characterization only if adopted as the basis for that action.
In construing the agency's obligations relative to invocation of KRS 61.878(1)(h), the Attorney General has observed:
In order to successfully raise this exception, 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; see also 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, Kentucky Board of Medical Licensure failed to justify denial of records request with proof of harm by premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in 911 tape would harm the city was insufficient to satisfy statutory burden of proof); 97-ORD-129 (Hardin County Drug Task Force's reliance on law enforcement exception to withhold policy and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); 98-ORD-31 (Lexington Fayette Urban County Government erroneously relied on KRS 61.878(1)(h) in denying request for tape of personal conversation conducted on telephone line dedicated to public 911 use to be used in disciplinary action against employees who engaged in conversation); University of Kentucky v. Courier-Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992) (University improperly relied on KRS 61.878(1)(h) in denying newspaper access to records compiled in response to NCAA investigation since it was not a law enforcement agency or an agency involved in administrative adjudication and therefore did not satisfy the first part of the three part test). The question of the propriety of agency invocation of KRS 61.878(1)(h) has thus arisen in various contexts, but the analysis remains the same. "Consistent with the principle that free and open examination of public records is in the public interest, KRS 61.878(1)(h), like each of the eleven other exceptions, must be 'strictly construed' to afford the broadest possible public access. KRS 61.871." 97-ORD-129, p. 2.
In OAG 89-11, this office held that the Jefferson County Police improperly relied on KRS 61.878(1)(h) in denying a newspaper reporter's request for tapes of radio transmissions between noon and 2:00 p.m. on January 10, 1989, during which time a police officer was killed. Analyzing the language of KRS 61.878(1)(h), specifically "records compiled in the course of detecting and investigating statutory and regulatory violations," we opined that "[s]uch phraseology does not encompass electronic recordings of general radio traffic of a police agency, not made in a specific detection or investigation process, which were 'segregated' in connection with an investigation." OAG 89-11, p. 4. Continuing, we observed:
The recording may have been made during the time the events in question were occurring, but it was made independently of, or collaterally to, the events involved.
Id. at 4. Thus, we concluded, the taped radio transmissions were not "compiled in the process of detecting and investigating statutory or regulatory violations."
Acknowledging that this issue was susceptible to "reasonable disagreement," we nevertheless concluded that the police department's reliance on KRS 61.878(1)(h) was misplaced. The Attorney General focused on the fact that "there must . . . be a showing that the agency would be harmed by 'premature release of information to be used in a prospective law enforcement action' . . . [and,] only a bare claim is made in such regard." OAG 89-11, p. 4. The department maintained that:
The tape in question provides valuable information of an investigative and evidentiary nature in establishing the time frame of the entire incident and the movement and actions of the suspect. Release of the tape at this time, in the opinion of the department, would be detrimental to the criminal action against the suspect.
The Attorney General concluded that this statement "does not describe any harm to the agency" if inspection were allowed. OAG 89-11, p. 5.
In the appeal before us, the Division of Police advances many of the same arguments relative to nondisclosure of records made independently of its internal affairs investigation, notwithstanding the fact that they were not "actively, specifically, intentionally, and directly compiled as an integral part of a specific detection or investigation process." OAG 89-11, p. 4. Based on the reasoning set forth in OAG 89-11, and subsequent open records decisions affirming it, 4 we reject these arguments, and conclude that the records described above do not qualify for exclusion under KRS 61.878(1)(h). These records consist of recorded incoming calls regarding traffic accidents on May 18, 2001, from 10:15 p.m. to 11:30 p.m.; recorded dispatches to, and responses from, officers from 10:15 p.m. to 11:30 p.m. on May 18, 2001; photos taken at the scene; and statements by the witness who followed Officer Highsmith. Again acknowledging the potential for reasonable disagreement on this issue, we further conclude that the Division of Police fails to make an adequate showing that it would be harmed by premature disclosure of these records. The Division suggests that these records contain information the premature disclosure of which will compromise its investigation, and somehow impair its ability to impose appropriate sanctions. This bare claim appears to be based on little more than supposition and conjecture. As in OAG 89-11, there is no description of the harm that will occur if inspection is allowed. We are unable to discern how investigation and possible imposition of disciplinary measures will be impeded, undermined, or otherwise jeopardized by disclosure of the taped transmissions, photos, and witness statements compiled collaterally to the investigation and not as an integral part of the investigation. We therefore conclude that the City of Louisville Division of Police improperly withheld these records on the basis of KRS 61.878(1)(h).
Nevertheless, we hold that the Division of Police properly withheld any letters or memoranda from Officer Timmons or Major Burbrink to their superiors in which they evaluated Officer Highsmith's conduct. Such records fall squarely within the parameters of KRS 61.878(1)(i) and (j) as preliminary memoranda in which opinions are expressed, and retain this characterization until final action is taken in this matter, and after, if they are not adopted by the Chief of Police in meting out final disciplinary action or deciding that disciplinary action is not warranted. We affirm the Division's partial denial of this portion of Mr. Hebert's request.
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.
Mark HebertWHAS-11520 West Chestnut StreetLouisville, KY 40202Alicia M. SmileyPublic Information SpecialistCity of LouisvilleDivision of Police633 W. Jefferson StreetLouisville, KY 40202-2786
Stephanie HarrisAssistant Director of LawCity of LouisvilleRoom 200, City HallLouisville, KY 40202-2771
Footnotes
Footnotes
1 This written response, issued some eight business days after Mr. Hebert submitted his request, confirmed a June 8, 2001, voice mail response from Ms. Smiley to Mr. Hebert. Both responses were untimely. KRS 61.880(1).
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2 KRS 17.150(2) states that "intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made."
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3 One additional category of records remains undisclosed. These records consist of "vehicle incident reports and equipment damage reports filed by Officer Highsmith." In her June 11 response, Ms. Smiley indicated that she had been "unable to locate" any responsive records. Although a public agency cannot produce for inspection records that do not exist or cannot be located, it is incumbent on the agency to document what steps were taken to locate the record, and to demonstrate that the search methods used were those that could reasonably be expected to produce the records requested. See, e.g., 95-ORD-96 and 99-ORD-42. After the 1994 amendments to the Open Records Act, and specifically KRS 61.8715, a denial based on the nonexistence of the records must be accompanied by an explanation of the search methods used.
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4 See, for example, 98-ORD-31; 98-ORD-104; 99-ORD-28; 99-ORD-162.
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