Request By:
Scott M. Webster
110 Cole Court
P. O. Box 149
Barbourville, KY 40906Larry Crigler
Boone County Attorney
P. O. Box 169
Burlington, KY 41005Major Jack Banks, Commander
Bureau of Criminal Investigations
Boone County Sheriff's Department
P. O. Box 198
Burlington, KY 41005
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 Boone County Sheriff's Department, Bureau of Criminal Investigations, violated the Open Records Act in the disposition of Scott M. Webster's requests 1 for information pertaining to a truck reported stolen in Boone County on June 26, 2000. Mr. Webster is an attorney who represents a lien holder on the truck, and indicates that he is "compiling information for purposes of a potential civil lawsuit on behalf of [his] client . . . ." For the reasons that follow, we find that although its response was procedurally deficient, the Bureau properly denied Mr. Webster's request.
In a response directed to this office following commencement of Mr. Webster's appeal, Bureau of Criminal Investigations Commander Major Jack Banks notified this office that Mr. Webster's request had been denied because the requested records pertain to "an open and currently active case investigation." He attached a copy of a December 16 letter directed to Mr. Webster in which he explained the Bureau's position. Acknowledging receipt of a December 13 letter from Mr. Webster "detailing Mr. Webster's intention to file an appeal on this matter," Major Banks advised:
As best as I can determine neither your letter to Detective Lavender dated April 03, 2001, nor your letter to BCCI dated June 19, 2001, have been received. The only known previous contact received from you by this Agency was a telephone call to Detective Lavender requesting a copy of report 00-7868. I am told that at the time of your telephone call that the public pages of the initial report were mailed to you. I have enclosed additional copies if for some unknown reason the earlier mailing was not received.
Presently, the status of the case to which you refer is an open and continuing investigation. As such, the criminal investigative details are not available for release.
Because this response did not include a citation to the statutory exemption authorizing nondisclosure, did include only a minimal explanation of why the investigative records were withheld, and may have been untimely, we find that the Bureau of Criminal Investigations' response was procedurally deficient. Nevertheless, we affirm the Bureau's denial of Mr. Webster's request, Major Banks having in fact articulated a legitimate basis for denial of access in terms of the requirements of the Open Records Act. .
We begin by noting several procedural irregularities in the Bureau's response to Mr. Webster's request. KRS 61.880(1) establishes guidelines for public agency response to all open records requests. That 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 record 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 construing this provision, the Kentucky Court of Appeals has observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 857 (1996) (emphasis added).
The court concluded that a "limited and perfunctory response" to a request did not "even remotely compl[y] with the requirements of the Act - much less . . . amount [] to substantial compliance." Id. To the extent that the Boone County Sheriff's Department failed to cite the specific exceptions authorizing the withholding of the records, identified below, and offered only a terse explanation for its denial of Mr. Webster's requests, we find that the response did not conform to KRS 61.880(1). 2 We urge the Department to review the cited provision to insure that future responses conform to the Open Records Act.
As noted above, it is the opinion of this office that the Bureau advances a legally supportable basis for denying access to those portions of the investigative file not already disclosed in terms of the requirements of KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l) , 3 and KRS 61.878(1)(h). In an early open records opinion, the Attorney General analyzed the purpose underlying the exemption codified at KRS 17.150(2), and its "companion statute," KRS 61.878(1)(h), 4 observing that "[i]nvestigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2, citing Privacy: Personal Data and the Law , National Association of Attorneys General (1976). There, we recognized that "[i]t is generally within the discretion of the police department to decide when a case is [active], merely inactive, 5 or is finally closed." Nevertheless, the Attorney General reminded the law enforcement agency of the language found in KRS 17.150(3), echoed in KRS 61.878(1)(h), which provides that "[w]hen a demand for the inspection of the records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity. Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section." OAG 83-123, p. 2. 6
Both KRS 61.878(1)(h) and KRS 17.150(2) recognize that investigative records maintained by law enforcement agencies may be withheld until prosecution is concluded or a determination not to prosecute has been made. Hence, "the right of public inspection set forth in KRS 17.150(2) [and KRS 61.878(1)(h)] is contingent upon the completion of the investigation and litigation or a determination having been made not to prosecute. " OAG 90-143, p. 4. Although we believe that both statutes contemplate greater specificity in justifying the Bureau's refusal to permit inspection, we are not prepared to say that its position is legally indefensible. Having established that the disputed records consist of investigative reports maintained by a criminal justice agency, and that prosecution has not been completed, we find that the Bureau of Criminal Investigations of the Boone County Sheriff's Department did not abuse its discretion in denying access to those reports. Accordingly, we affirm the Bureau's actions.
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.
Footnotes
Footnotes
1 Mr. Webster submitted his first request to Detective Victor Lavender of the Boone County Criminal Investigative Unit on April 3, 2001 and his second request to the records custodian for the Unit on June 19, 2001. Having received no response to his requests, he contacted Boone County Attorney Larry Crigler to inquire into their status.
2 We are unable to resolve the factual issue of whether the Bureau's response was untimely. Clearly, it was issued months, rather than three business days, after Mr. Webster's requests. However, the Bureau denies that it received those requests. If, in fact, the requests were misdirected, the error may be attributable to Mr. Webster's apparent use of an incorrect P. O. Box number, 257, instead of the correct P. O. Box number, 198.
3 KRS 61.878(1)(l)authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
4 KRS 17.150(2) provides in relevant part:
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. However, portions of the records may be withheld from inspection if the inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in the records to be used in a prospective law enforcement action.
KRS 61.878(1)(h)authorizes 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.
5 A case is deemed "inactive" when "no suspect has been determined and active investigation has ceased because the investigator can find no other trails to follow . . . ." OAG 83-123, p. 2.
6 The final sentence of KRS 61.878(1)(h) thus provides that "[t]he 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."