Opinion
Opinion By: Albert B. Chandler III, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Prestonsburg violated the Open Records Act in the disposition of Loretta Blackburn's December 13, 2002 request, directed to the attention of the Prestonsburg Department of Public Safety, for a copy of "any video surveillance records of South Lake Drive, from the Prestonsburg Municipal Building on November 17, 2002, between the hour of 8:45 a.m. and 9:30 a.m." For the reasons that follow, we conclude that the City's reliance upon KRS 61.878(1)(h) was misplaced because it failed to establish that the tape was compiled as an integral part of a specific investigation and failed to meet its statutory burden of establishing that premature disclosure of the surveillance tape to the public would "harm" the ongoing investigation. KRS 61.878(1)(h).
By letter dated December 16, 2002, Peggy Bailey, City Clerk, on behalf of the City, responded to Ms. Blackburn's request, advising her:
Due to the dependence of an open criminal case we are unable to release the tape at this time. After the case has been closed if you still wish a copy we will be able to comply.
As a result of the City's denial of her request, Ms. Blackburn initiated the instant appeal. After receipt of Notification of the appeal and a copy of Ms. Blackburn's letter of appeal, David H. Neeley, Prestonsburg City Attorney, provided this office with a response to issues raised in the appeal. In his response, Mr. Neeley explained, in part:
The video surveillance tape Ms. Blackburn seeks captured the events and circumstances leading up to a high speed police chase which now involves a criminal case pending before the Floyd County Grand Jury where certain felony indictments are being sought. In fact, I am being advised that the criminal investigation is ongoing and that additional felony charges are apt to be brought against the defendant.
Due to the pendency of the case before the Floyd County Grand Jury and the open and ongoing investigation where additional charges may be brought, Ms. Blackburn's request was denied pursuant to KRS 61.878(1)(h) which excludes application of the Open Records Law from:
Upon completion of the criminal investigation and conclusion of the criminal case the tape, if still maintained by the Police Department, will be available to Ms. Blackburn once we are authorized by the Commonwealth Attorney to release it. Until then we simply do not believe it appropriate to make the surveillance tape open for public display given the potential impact on the criminal case.
We are asked to determine whether the City's denial violated the Open Records Act. For the reasons that follow, we conclude that the City's reliance upon KRS 61.878(1)(h) was misplaced because it failed to establish that the surveillance tape was compiled as an integral part of a specific investigation and failed to meet its statutory burden of establishing that premature disclosure of the surveillance tape to the public would "harm" the ongoing investigation.
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 order to successfully raise KRS 61.878(1)(h) as a basis for nondisclosure, 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.
In construing KRS 61.878(1)(h), the Attorney General has observed:
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 have been met.
See, for example, 95-ORD-95, p. 3; 96-ORD-155, p. 5; 97-ORD-129, p. 3.
In the facts before us, it is not clear whether the surveillance tape, which Ms. Blackburn indicates was recorded from the Prestonsburg Municipal Building, was operated by a department of the City that would constitute a "law enforcement agency or an agency involved in administrative adjudication, " and, thus, meet the first part of the test for application of KRS 61.878(1)(h). The request was made to the Prestonsburg Department of Public Safety and the City Clerk made the response.
Assuming, for the sake of argument, that the Department of Public Safety meets the first-part requirement of the test as a law enforcement agency, the City has not established that the surveillance tape was compiled in the process of detecting and investigating statutory or regulatory violations, in order to meet the second part of the test. The facts before us suggest that the surveillance camera, operated from the City's Municipal Building, records all activity within its sight on a regular basis and not as an integral part of a specific detection or investigative process.
In OAG 89-11, this office held that the Jefferson County Police Department improperly denied access to a tape recording of police radio transmissions surrounding a criminal event. In reaching such result, we stated:
In the view of this office, "records compiled in the course of detecting and investigating statutory violations" (as used in KRS 61.878(1)[h]) means those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process. Such phraseology does not encompass electronic recordings of general radio traffic of a police agency, not made uniquely in a specific detection or investigation process, which were "segregated" in connection with an investigation.
Moreover, in OAG 89-11, we noted that even if there is reasonable disagreement as to whether the tape was compiled in the process of detecting and investigating statutory violations, there must still be a showing that the agency would be harmed by "premature release of information to be used in a prospective law enforcement action or administrative adjudication. " KRS 61.878(1)(h).
In OAG 89-20, we held the City of Winchester improperly denied a request to inspect radio transmission logs generated by the Winchester Police Department, on the basis of what is now codified as KRS 61.878(1)(h). In so holding, we explained the nature of the logs as follows:
Police dispatch logs are typically seriatim notations, commonly of a summary character, of police dispatches and disposition codes, compiled collaterally to, and not integrally in the process of, detecting and investigating statutory violations, in contrast to, for example, an investigator's notes. In order to be exempted from inspection pursuant to KRS 61.878(1)[h], particulars regarding given notations on a log would have to be articulated in terms of the requirements of the statute.
The City's response to the letter of appeal indicates the video surveillance tape captured the events and circumstances leading up to a high speed police chase which now involves a criminal case pending before the Floyd County Grand Jury where certain felony indictments are being sought and that the criminal investigation is ongoing. Although the surveillance tape may be included in the investigative file, it appears to have been made collaterally to, and not as an integral part of, the ongoing investigation. Accordingly, the City does not appear to have met the second part of the three-part test, that the record was compiled in the process of detecting and investigating statutory violations. See OAG 89-11; OAG 89-20.
Finally, even assuming that the City meets the first two parts of the three-part test, it fails to articulate how release of the surveillance tape would compromise the ongoing investigation. The City's responses do not describe the harm that would result from premature release of the tape other than it does not "believe it appropriate to make the surveillance tape open for public display given the potential impact on the criminal case. " This office has previously held that a "bare claim" that premature release of an investigative record, without a description of the harm that would occur, was insufficient to qualify for exemption under KRS 61.878(1)(h). 01-ORD-122; OAG 89-11. Thus, having failed to meet the third part of the three-part test, we conclude that the City's reliance on KRS 61.878(1)(h) as a basis for withholding access to the tape is misplaced. .
Thus, because the surveillance tape was 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. Accordingly, we conclude that the City improperly withheld disclosure of the requested surveillance tape and a copy of it should be made available for Ms. Blackburn's inspection.
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.
Loretta Blackburn Floyd County Times P.O. Box 390Prestonsburg, KY 41653
Peggy Bailey, ClerkCity of Prestonsburg200 North Lake DrivePrestonsburg, KY 41653
David H. Neeley, AttorneyCoty of Prestonsburg112 West Court Street, Suite 100Prestonsburg, KY 41653