Opinion
Opinion By: Albert B. Chandler III, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This is an appeal by the Kentucky Enquirer newspaper contesting the refusal of the Kentucky State Police to disclose an "in-car video of a traffic stop Feb. 13 in Falmouth, Kentucky, by a trooper assigned to Post 6 in Dry Ridge." The newspaper made the request under the Open Records Act by letter dated April 11, 2003. The State Police denied the request by letter dated April 15, 2003 based on KRS 61.878(1)(h) and KRS 17.150(2). The State Police contended that those two statutory provisions exempted the videotape from disclosure under the Open Records Act because it was in the file of a law enforcement agency and related to a case that had not been closed. KRS 17.150(2) subjects intelligence and investigative reports maintained by law enforcement agencies to public inspection when the prosecution is completed or a determination not to prosecute has been made. Whether the prosecution has been completed and whether there is still an open investigation is disputed. The newspaper points out that the traffic offense has been adjudicated in court and that the grand jury failed to take action on another matter related to the incident. The State Police contend that there is still an open investigation on a broader issue, and the decision on whether to prosecute has yet to be made.
We believe the State Police are in the best position to know whether an investigation is still active and, in those circumstances, we will take their word. See OAG 90-143. Because the records are not subject to disclosure under KRS 17.150(2) until the investigation is completed or a determination not to prosecute has been made, they are presently exempt from disclosure under KRS 17.150(2).
The State Police also relied on KRS 61.878(1)(h). That provision exempts from disclosure records of law enforcement agencies if disclosure of the records would harm the agency by revealing the identity of informants or by premature release of the information to be used in a prospective law enforcement action. Again, the records are to be released after the enforcement action is completed or a decision is made to take no action. The State Police in their responses do not state how they will be harmed by the release of the videotape. Without more of an explanation, the mere citing and parroting of the statute is not enough. KRS 61.880(1) requires a brief explanation of how the exemption from disclosure applies to the record withheld.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). In our opinion this includes an explanation of how the agency will be harmed by the release of the videotape.
In response to the appeal, the State Police argue, for the first time, that the videotape is also exempt from disclosure under KRS 189A.100 and KRS 61.878(1)(k). KRS 189A.100(2)(e)3 makes videotape recordings of field sobriety tests confidential. Neither the newspaper nor the State Police mention a field sobriety test. Again, without more, this is insufficient information upon which this office can affirm a denial of access to the videotape. The law places the duty to explain on the one who seeks to deny access to a public record. KRS 61.880(1). Where the exception to disclosure is based on the purpose the record was created that purpose should be stated.
The same is true of reliance on KRS 61.878(1)(k). That statute exempts records from disclosure under the Open Records Act when disclosure is prohibited by federal law or regulation. No federal law or regulation is pointed out by the State Police.
Accordingly, we decide that the State Police were justified in refusing to disclose an in-car videotape of a traffic stop based upon KRS 17.150(2). Because the State Police failed to adequately explain withholding the videotape under KRS 61.878(1)(h), KRS 61.878(1)(k), and KRS 189A.100(2)(e)3 we limit the basis of our decision to KRS 17.150(2) alone.
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.