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 Hardin County Detention Center violated the Open Records Act by denying John Davis Seay's request for a certified copy of the official dispatcher's log relating to any radio transmissions "made relative to the case Commonwealth v. Amy King, regarding the investigation, arrest and post-arrest procedures occurring on July 16, 2003 at approximately 0124 hours, on 31W." For the reasons that follow, we conclude that the Detention Center failed to meet its burden in establishing that the requested records were exempt under KRS 61.878(1)(h), and thus, improperly denied access to the records. Unless the agency can articulate how disclosure of the requested records would harm its law enforcement action, it must make the records available for Mr. Seay's inspection.
By letter dated August 19, 2003, Mr. Seay submitted an open records request to Louis B. Lawson, Jailer, Hardin County Jailer, 1 in which he stated:
Pursuant to KRS 61.870 et seq., the Kentucky Open Records Act, I am requesting that you provide me with a certified copy of the following:
Any record you have of the official dispatcher's log indicating any radio transmissions made relative to the case Commonwealth v. Amy King, regarding the investigation, arrest and post-arrest procedures occurring on July 16, 2003 at approximately 0124 hours, 31W. Officer Vernon Curl, Jr. of the West Point Police Department made this arrest.
I am requesting these certified records because I need them for use in defending Amy King who is charged with DUI in Hardin County, Kentucky.
By letter dated September 24, 2003, Jennifer B. Pitts, Assistant Hardin County Attorney, responding on behalf of the Detention Center, denied Mr. Seay's request, advising:
The attached request received by the Hardin County Detention Center was forwarded to our office. Please be advised that the information you requested cannot be disclosed under the Open Records law based upon the fact that it is the subject of an ongoing criminal investigation/litigation. Please make any requests for information via the discovery process to our office.
In his letter of appeal, Mr. Seay asked this office to review his request and the Center's denial to determine whether or not the agency improperly denied his request.
After receipt of notification of the appeal and a copy of the letter of appeal, Arch C. McKay III, Assistant Hardin County Attorney, on behalf of the Hardin County Jailer, provided this office with a response to the issues raised in the appeal. In his response, Mr. McKay stated:
The Appellant's request for records stems from a DUI stop and arrest. This case is a current, ongoing law enforcement action. Rather than utilizing the discovery process through the criminal court system, the Appellant chose to attempt to gain the requested records through the Kentucky Open Records Act. On September 24, 2003, this office issued a response denying inspection of the records based on KRS 61.878[1](h) because said records were compiled in the process of investigating and detecting the criminal offense of DUI. Until the criminal case is resolved in Hardin District Court, the Hardin County Jailer submits that these records are exempt from disclosure pursuant to the terms of KRS 61.878[1](h). It is further submitted that the Kentucky Open Records Act should not be used as a "back door" measure to avoid going through the discovery process governed by the Kentucky Rules of Criminal Procedure.
We are asked to determine whether the Detention Center's denial of Mr. Seay's request violated the Open Records Act. For the reasons that follow, we conclude that the Detention Center failed to meet its burden in establishing that the requested records were exempt under KRS 61.878(1)(h), and thus, improperly denied access to the records. The agency failed to establish that (1) the requested dispatcher's log relating to the identified radio transmissions was compiled as an integral part of a specific investigation and (2) failed to establish that premature disclosure of the radio transmissions would "harm" the ongoing law enforcement action.
This office has previously held that police radio transmission tapes and dispatch logs are, in general, open for public inspection. 98-ORD-104; 94-ORD-133; OAG 89-20; OAG 89-11. Reviewing the line of opinions supporting this holding, in 98-ORD-104 we observed:
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:
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 the instant appeal, no showing has been made of any harm which might occur if inspection of the radio logs and tapes is allowed.
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:
98-ORD-104, pp. 4, 5 (emphasis added). We held in 98-ORD-104 that the Kentucky State Police improperly withheld disclosure of the requested police radio logs and tapes. Acknowledging that the records might be included in a police investigative file, we concluded that they were made collaterally to, and not as an integral part of, an investigation and that there was no showing of harm under KRS 61.878(1)(h).
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.
Even assuming that the Detention Center meets the first two parts of the three-part test, it fails to articulate how release of the dispatcher's log relating to the identified radio transmissions would compromise the ongoing investigation/litigation. The Detention Center's responses do not describe the harm that would result from premature release of the records at issue. Moreover, 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 agency's reliance on KRS 61.878(1)(h), as a basis for withholding access to the dispatcher's log relating to the requested radio transmission, is misplaced and that the requested records were improperly withheld from disclosure under that exemption. Accordingly, we conclude that the Detention Center improperly withheld disclosure of the requested surveillance tape and a copy of it should be made available for Mr. Seay's inspection. Unless the agency can articulate how disclosure of the requested records would harm its law enforcement action, it must make the records available for Mr. Seay's inspection.
The Detention Center further argues that because Mr. Seay's records request stems from a DUI stop and arrest action against his client and involves a case that is an ongoing investigation/litigation, he should utilize the discovery process governed by the Kentucky Rules of Criminal Procedure rather than attempt to gain access to the records through the Open Records Act.
Addressing the issue of making an open records request in the presence of litigation, this office in 03-ORD-213 observed:
OAG 89-65, p. 3; see also, 95-ORD-27; 97-ORD-98; 99-ORD-162; accord, Kentucky Lottery Corporation v. Stewart, Ky.App., 41 S.W.3d 860 (2001) (holding that "the gist of [KRS 61.878(1)] is not to terminate a person's right to use an open records request during litigation . . . .").
These open records decisions were accompanied by the following cautionary language:
We do not, in making such observation, suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced, process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery procedures.
OAG 89-65, p. 3. Thus, although the Attorney General has recognized the potential pitfalls of using the Open Records Act as a discovery tool, he has not recognized the right of a public agency to deny access to public records on these grounds. Unless the requested records fall within one or more of the exceptions to public inspection codified at KRS 61.878(1)(a) through (l), they must be disclosed. The reasoning of the cited open records decision extends to the present appeal.
03-ORD-213, pp. 5-6. Accordingly, notwithstanding the presence of litigation, Mr. Seay is entitled to exercise his right under the Open Records Act to request inspection of public records and to assert his right to appeal the agency's response to the Attorney General, under KRS 61.880(2).
Finally, we address Mr. Seay's request for a certified copy of the requested records to be used in the litigation. In 03-ORD-207, we denied such a request, stating:
It is not, however, incumbent on the [public agency] to "certif[y] . . . the appropriate records . . . in such manner that the same may be introduced as evidence in a Court of Law . . . ." Such a requirement does not exist in the Open Records Act.
03-ORD-207, p. 3. Therefore, we find the Detention Center is not required to provide a certified copy of the requested records under the Open Records Act and, thus, did not violate the Act in this regard.
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.
Footnotes
Footnotes
1 In his letter of appeal, Mr. Seay indicated that the Hardin County Jailer operates law enforcement dispatch for Hardin County.