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 Oldham County Animal Shelter violated the Open Records Act in the disposition of Randy Skaggs's August 22, 2002, request for various records pertaining to "the confiscation, kenneling and care of an undetermined numbers of dogs, cats and birds taken from the home of Suzanne (and Ed) Coke of LaGrange, Kentucky by Oldham County Animal Control." Mr. Skaggs's appeal focuses on requests 7, 10, 12, 14, 15, and 18, all but the last of which were denied on the basis of KRS 61.878(1)(h). For the reasons that follow, we find that the Shelter failed to meet its statutory burden of proof 1 in denying requests 7, 10, 12, 14, and 15, and that its response to request 18 was only partially consistent with KRS 61.872(4).
The records in dispute in this appeal were identified as follows in Mr. Skaggs's August 22 request:
(7) receipts, documentation or records indicating or showing payment made to any and all veterinarians or veterinarian clinics for all medical expenses and charges incurred by the animals belonging to Suzanne (and Ed) Coke for the time period of June 24, 2002 through August 22, 2002
(10) receipts, documentation or records indicating or showing the number of dogs, cats or birds belonging to Suzanne and Ed Coke that were euthanized and copies of any and all signed orders, notes or forms requesting each one's destruction
(11) receipts, documentation or records indicating or showing that heartworm preventative and flea control medicines were purchased and administered to all of the dogs owned by Suzanne (and Ed) Coke as her offer of furnishing their prescribed monthly medications (Heartgard, Interceptor and Frontline Plus) was declined
(14) receipts, documentation or records indicating or showing the number of hours spent by the 30 volunteers to walk the dogs belonging to Suzanne (and Ed) Coke in addition to their names, mailing address and telephone numbers
(15) receipts, documentation or records indicating or showing the names, mailing address and telephone numbers of each of the people who are providing foster care for each of the animals (personal property) of Suzanne (and Ed) Coke which were placed in their temporary care; it is our understanding that there are or were six in foster homes (5 dogs and 1 cat. )
(18) copies of any records or documentation indicating or showing whereby legal proceedings or lawsuits were filed against the Oldham County Animal Shelter or Oldham County Animal Control members or staff for animal related incidents
In an undated, unsigned response that Mr. Skaggs received on September 3, 2002, 2 the Shelter notified him that records responsive to requests 7, 10, 12, 14, and 15 would be "withheld pursuant KRS 61.878(h) [sic] in that these are records that may be used in criminal prosecution and will not be released except upon proper discovery motion." In response to request 18, the Shelter asked that Mr. Skaggs "be more specific or . . . check with the County Attorney who would have those records." Dissatisfied with the Shelter's response, Mr. Skaggs initiated this appeal on September 4. Notification of Mr. Skaggs's appeal was issued to the Shelter on September 6, 2002, but the Shelter did not avail itself of the opportunity to supplement its denial pursuant to 40 KAR 1:030 Section 2.
Given the brevity of the Shelter's response, and the scant information provided, we cannot affirm its denial of requests 7, 10, 12, 14, and 15 on the basis of KRS 61.878(1)(h). 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 to public inspection, must be "strictly construed" to afford the broadest possible access. KRS 61.871. KRS 61.878(1)(h) provides, in part, that the following public records may be excluded from public inspection:
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.
In 94-ORD-56, the Attorney General affirmed, on the basis of KRS 61.878(1)(h), 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), 3 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." 97-ORD-52, p. 4. Compare 00-ORD-136 (holding that the Jefferson County Corrections Department did not demonstrate that FBI had requested that Department withhold videotape pending resolution of FBI investigation, or indicate that investigation would be compromised by disclosure) .
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, pp. 2, 3 (emphasis added); 97-ORD-93; 99-ORD-162 (and open records decision cited therein at page 4).
Although the Oldham County Animal Shelter itself is not a law enforcement agency or agency involved in administrative adjudication, it appears from the Shelter's response that the Oldham County Attorney is contemplating criminal prosecution. However, the evidentiary record is devoid of proof that the County Attorney has requested that the Shelter withhold the records, that the records "were compiled in the process of detecting and investigating statutory or regulatory violations," or that disclosure of the information the records contain "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. " KRS 61.878(1)(h).
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 Oldham County Animal Shelter vaguely asserts that the disputed records "may be used in criminal prosecution, " but fails to demonstrate that the records were "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 in OAG 89-11, and subsequent open records decisions affirming it, 4 we reject the Shelter's argument, and conclude that the disputed records do not qualify for exclusion under KRS 61.878(1)(h). These records consist of documentation of medical care given to the confiscated animals, and expenses incurred as a result thereof, foster care and other types of care given to the confiscated animals on a voluntary basis, and euthanasia of the confiscated animals. While we think it unlikely that such records were compiled as an integral part of a specific investigation, we acknowledge the potential for reasonable disagreement on this issue and further conclude that the Shelter fails to make any showing that the contemplated criminal prosecution will be compromised by premature disclosure of these records. As in OAG 89-11, there is no description of the harm that will occur if inspection is allowed. Absent any proof beyond the Oldham County Animal Shelter's bare claim, we conclude that the Shelter improperly withheld these records on the basis of KRS 61.878(1)(h). 5
With reference to request 18 for copies of records reflecting legal proceedings filed against the Oldham County Animal Shelter or Oldham County Animal Control, their members or staff, for "animal related incidents," we find that the Shelter partially discharged its duty under KRS 61.872(4) by notifying Mr. Skaggs that the custodian of any such records is the county attorney. KRS 61.872(4) provides:
If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records.
This office has no reason to think that, if the Shelter or its employees have been sued, the Shelter maintains case files. If suits have been filed, the likely custodian of those records is the Oldham County Attorney. 6 However, pursuant to KRS 61.872(4), it was incumbent on the Shelter to furnish Mr. Skaggs "with the name and location of the official custodian . . . ." To the extent that the Shelter failed to do so, its response to request 18 was deficient.
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.
Randy SkaggsP.O. Box 1Webbville, KY 41180
Kim LikinsOldham County Animal Shelter3946 Jones DriveLaGrange, KY 40031-0099
Hon. John R. FendleyOldham County Attorney Oldham County Fiscal Court Building100 West Jefferson StreetLaGrange, KY 40031
Footnotes
Footnotes
1 KRS 61.880(2)(c) states that "the burden of proof in sustaining the action shall rest with the agency . . . ."
2 KRS 61.880(1) requires that an agency respond to an open records request within three business days, and that the response "be issued by the official custodian or under his authority . . . ." The Shelter's response does not appear to satisfy either of these requirements insofar as more than three days appears to have elapsed between the date of Mr. Skaggs's request and the date on which the Shelter responded, and insofar as it is not altogether clear that the response was issued by the official custodian or under his or her authority, the response bearing no signature.
3 In Edmondson, above at 858, the Court of Appeals declared that "[t]he language of the statute [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents." [Emphasis added.]
4 See, for example, 98-ORD-31; 98-ORD-104; 99-ORD-28; 99-ORD-162; 01-ORD 122.
5 The Shelter does not advance any alternative argument in support of its denial of requests 7, 10, 12, 14, and 15. Because requests 14 and 15 implicate personal privacy concerns recognized in KRS 61.878(1)(a) and Zink v. Commonwealth, Ky.App., 902 S.W.2d 825 (1994), relative to disclosure of volunteers' names, mailing addresses and phone numbers, we remand this issue to the Shelter. If the Shelter wishes to rely on KRS 61.878(1)(a) in withholding portions of records containing this information, it must do so in writing, and within three business days, citing the specific exception and explaining how it applies to the information withheld. Nonexempt portions of those records must be released. KRS 61.878(4).
6 Assuming any law suits brought were civil suits, KRS 61.878(1)(h) would not authorize the County Attorney to permanently withhold records relating thereto since KRS 61.878(1)(h) only authorizes the County Attorney to permanently withhold "records and information . . . pertaining to criminal investigations or criminal litigation."