Opinion
Opinion By: Gregory D. Stumbo,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
At issue in the instant appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying the request of John Yarbrough for "all recordings, transcripts, and notes from all interviews, call-ins[,] reports, and leads received by Kentucky State Police during the period from August 25, 1995 to September 1, 1995 that led to the suspect Marvin Dill in the abduction of Heather Teague." For the reasons that follow, we conclude that the KSP properly relied upon KRS 61.878(1)(h) and OAG 86-80 in denying Mr. Yarbrough's request.
By fascimile dated November 26, 2003, Mr. Yarbrough directed the subject request to the KSP. More specifically, Mr. Yarbrough requested to inspect the following:
Dates and TimesRecordings, Transcripts and notesRecord of all requests or attempts to interview All Officers[,] [KSP] or others, that were involved in these interviews, reports, call-ins, and leads as well as civilians and how they were specifically involved.
In a response letter dated December 16, 2003, Terry Edwards, the KSP Official Custodian of Records, denied Mr. Yarbrough's request on behalf of the KSP. According to Mr. Edwards, the KSP forwarded Mr. Yarbrough's request to Post 2 for a response on that day that it was received. "At that time," the KSP sent an "interim response letter" to Mr. Yarbrough advising him of that fact. In a fascimile directed to the KSP on December 4, 2003, however, Mr. Yarbrough advised the KSP that the requested records would be in the possession of Post 16 rather than Post 2. On the same day, Post 2 notified the KSP via telephone that it had been unable to locate the requested records and, therefore, had forwarded Mr. Yarbrough's request to Post 16. By letter dated December 4, 2003, the KSP notified Mr. Yarbrough of this development. Having received no further response, Mr. Yarbrough inquired as to the status of his request in a facsimile directed to the KSP on December 15, 2003. 1 Upon outlining this sequence of events, Mr. Edwards offered the following explanation in support of his denial:
Please be advised that I have personally discussed your request with Captain Jerry Nauert, the Commander of Post 16, and he advised that all of the information you seek relates to a case that is still open. Further, he has requested that information and records contained in the case file not be released (see attached note) 2 as the release of this information would interfere with the investigation. Based on my discussions with Captain Nauert, I concur with his recommendations and conclusions that disclosure of information from this case would, in fact, jeopardize ongoing investigative efforts by the [KSP].
I would be remiss if I did not address the fact that you very recently sent me a fax and directed my attention to an Attorney General's Opinion (OAG 86-80) when someone with whom you are acquainted requested similar information on this same case. It seems that you, and the person making the previous request, believe that the holding in that Opinion supports your position that information from this case must be released, even though it is still an open case, because of the length of time the case has been carried as open. As I explained to the person who made the earlier request, it is our position that OAG 86-80 does not hold that simply because a missing person case has been open for some time, it is subject to being released. OAG 86-80 simply holds that where a missing person case has been open for some time, 8 years in that situation and in this case as well, the decision as to whether or not to release a case file is within the discretion of a law enforcement [agency], with the burden being on the agency to justify denying the release of the information, through an additional explanation. In other words, in cases such as these, an agency cannot justify a denial simply because the case is open, without doing more or offering an explanation. In this case[,] Captain Nauert was briefed on the specifics of your request and in response he has advised that the release of the information in the case file would interfere with ongoing investigative techniques and processes. Further, he has specifically and expressly requested that the information you seek not be released. Accordingly, your request is denied pursuant to KRS 61.878(1)(h) and OAG 86-80.
Mr. Yarbrough now appeals from this denial on behalf of Heather Teague's mother, Sarah Teague.
On appeal, Mr. Yarbrough cites OAG 86-80 in support of his position that it is time for Ms. Teague to "be given answers to questions she has been asking since the start, by gaining access to KSP records." 3 In Mr. Yarbrough's view, she "has a photographic memory" and is "the best detective for this case." If Ms. Teague had access to the requested records, Mr. Yarbrough believes that "she could solve her daughter's disappearance and find closure or possibly a cover-up." Although Mr. Edwards references OAG 86-80 and acknowledges the similarities between the two cases, he "fails to explain with specificity what allows KSP to refuse to [comply with] this Open Records request" according to Mr. Yarbrough.
In supplemental correspondence directed to this office following commencement of the instant appeal, Mr. Edwards elaborated on the KSP's position. As correctly observed by Mr. Edwards:
The central issue in this appeal seems to be the level of "proof" or specificity that is required for a law enforcement agency to deny the release of records in a criminal investigation that is open or pending, and which has been open for some time. Under "normal" circumstances[,] where a law enforcement agency receives a request for information in an open or pending case, the exception provided by KRS 61.878[1](h) serves as the statutory basis for refusing to release such information. However, in OAG 86-80 an additional level of "proof" was imposed on law enforcement agencies where cases had been open for some time (in that particular case, 8 years).
Reiterating his earlier views, Mr. Edwards argues that OAG 86-80 "does not hold that simply because a missing person/ kidnapping case has been open for some time, the information in the case is automatically subject to being released." In his estimation, OAG 86-80 "simply holds that where a missing person base has been open for some time[,] the decision as to whether or not to release a case file is within the discretion of a law enforcement agency, with the burden being on the agency to justify denying [a request to] release the information, through an additional explanation." In other words, an agency cannot justify its denial of a request by establishing that a case is open, "without doing more or offering an explanation."
Here, Captain Nauert made his decision "after carefully considering the request and the effects that release of [the] information would have on this investigation." As emphasized by Mr. Edwards, his recommendation was made "in good faith and was neither arbitrary nor capricious." In sum, it is the position of the KSP that Captain Nauert should "only be required to review the specifics of the particular request and offer a general response" because if a law enforcement agency is required to publicly disclose specific details by way of explaining why releasing the requested records would jeopardize the investigation, then "the damage is already done." Accordingly, the KSP requests that we affirm its disposition of Mr. Yarbrough's request or, in the alternative, provide "specific, objective guidelines regarding the level of justification" and/or the "degree" of proof that agencies must provide in this context.
Noticeably absent from the KSP's response is any reference to KRS 17.150(2), pursuant to which "[i]ntelligence and investigative reports maintained by criminal justice agencies are subject to inspection if prosecution is completed or a determination not to prosecute has been made." (Emphasis added). KRS 17.150(2) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which provides that "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are not subject to inspection absent a court order. In an early open records opinion, the Attorney General analyzed the underlying purpose of KRS 17.150(2), 4 and its "companion statute," KRS 61.878(1)(h), 5 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). When viewed in conjunction, the implication of these statutory provisions is that only those investigative files "pertaining to a named suspect after that suspect has been prosecuted or a decision has been made not to prosecute him" are subject to public inspection. Id. Weighing in favor of a nondisclosure policy is "'the fact that such material typically contains hearsay and uncorroborated allegations about individuals who may be innocent and whose reputations could be unfairly injured by publication.'" Id. Acknowledging these competing interests, the Attorney General recognized that "[i]t is generally within the discretion of the police department to decide when a case is [active], merely inactive, 6 or is finally closed." Id., p. 2. In so doing, however, the Attorney General reminded the police department of the language found in KRS 17.150(3) as echoed by KRS 61.878(1)(h):
When a demand for the inspection of records is refused by the custodian of the record[s], 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. In upholding the police department's denial of the request to inspect specified "investigation reports," the Attorney General observed that the incident which prompted the subject investigation had occurred two months before the request was submitted but declined to "say how long the police department should consider the case inactive before declaring it closed." Id.
In OAG 86-80, relied upon by both Mr. Yarbrough and the KSP, the Attorney General determined that a public agency could not rely solely upon KRS 61.878(1)(h) and KRS 17.150(2) in denying access to a file from a missing person case that had been classified as "an open case (active or inactive as opposed to closed) for almost eight years," citing OAG 83-123 as authority. OAG 86-80, p. 4. Because the agency had not met the burden of proof imposed by law relative to a denial based on these provisions, this office held that "[i]t should either make the material available for inspection or it should set forth some other statutorily recognized exception to public inspection" to justify its denial. Id. In contrast, the Attorney General "was not prepared to reach such a result where the investigation ha[d] been ongoing for one and one-half years." OAG 90-143. Again recognizing that the burden is on the custodian of records to justify the refusal of inspection with specificity, this office concluded that the KSP had met its burden by invoking KRS 61.878(1)(h) and KRS 17.150(2) and indicating that the investigatory records in question related to an open case. Id., p. 3. See also 01-ORD-85 and 96-ORD-25. Such is the case here.
Both KRS 61.878(1)(h) and KRS 17.150(2) recognize that law enforcement agencies may withhold investigative records until prosecution is completed or a decision not to prosecute has been made. In other words, "the right of public inspection set forth in KRS 17.150(2) is contingent upon the completion of the investigation and litigation or a determination having been made not to prosecute. " 01-ORD-85, p. 4, citing OAG 90-143, p. 3; OAG 88-27; OAG 87-66; OAG 87-15. Although more than eight years have elapsed since the tragic abduction of Heather Teague and we certainly appreciate Ms. Teague's need for closure, Captain Nauert has confirmed that the case remains "open" and "active" and that disclosure of the requested records would jeopardize the ongoing investigation thereby enabling the KSP to meet its burden of proof, albeit marginally. Accordingly, we find that the KSP's disposition of Mr. Yarbrough's request was consistent with the Open Records Act inasmuch as the subject investigation has not been concluded.
Although we concur with Mr. Yarbrough in his view that a public agency cannot indefinitely postpone access to investigative records by labeling an investigation ongoing, as evidenced by OAG 86-80, this office has consistently recognized that it is "within the sound discretion of the law enforcement agency to decide when a case is active, merely inactive or finally closed." OAG 90-143, p. 3; 01-ORD-85; 96-ORD-25; OAG 86-80. Accordingly, the Attorney General has been reluctant to determine "how long the [agency] could consider a case inactive before finally declaring it closed." 96-ORD-25, p. 2, citing OAG 86-80, p. 4. On the facts presented, it is not appropriate for this office to substitute its judgment for that of the KSP on this issue. Once the investigation is completed or a determination not to prosecute has been made, however, the investigative records will be subject to public inspection unless excluded from application of the Open Records Act by another statutory exception.
A party aggrieved by this decision may appeal it by initiating an 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.
John Yarbrough350 Dulin StreetMadisonville, KY 42431
Terry D. EdwardsKentucky State PoliceLegal Branch919 Versailles RoadFrankfort, KY 40601
Captain Gerald A. Nauertc/o Lt. Kerry SimsKentucky State Police, Post 168415 Highway 41 SouthHenderson, KY 42420
Footnotes
Footnotes
1 In relevant part,KRS 61.880(1) 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 (3) three 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.
Although the actions of the KSP relative to Mr. Yarbrough's request were consistent with the provisions of the Open Records Act through December 4, 2003, the KSP did not issue its final response until December 16, 2003, or after the statutory deadline, and then, only in response to Mr. Yarbrough's inquiry. Without further explanation, such a delay constitutes a procedural violation of KRS 61.880(1). Although Mr. Yarbrough does not raise this issue on appeal, we urge the KSP to review the mandatory language of KRS 61.880(1) to ensure that future responses comply with the Act.
2 As observed by Captain Nauert: "The information Mr. Yarbrough is requesting is contained in and a part of an active[,] ongoing [,] open investigation and if released it is believed would severely jeopardize investigation techniques and leads in this case. For that reason, I therefore recommend this request be denied."
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3 As observed by Mr. Yarbrough, the only suspect "appears to have shot himself."
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4 In relevant part,KRS 17.150(2) provides:
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.
5 KRS 61.878(1)(h) provides:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigation 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; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, 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 records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884. (Emphasis added).
6 A case is " inactive" but not closed when "no suspect has been determined and active investigation has ceased because the investigators can find no other trails to follow[.]" OAG 83-123, p. 2.
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