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 City of Providence violated the Kentucky Open Records Act in partially denying the request of Providence City Council Member Rayma Brown for copies of "any and all purchase orders/invoices" from 2003 relating to the communication devices and surveillance equipment utilized by various public agencies and "the City Account or Fund that paid for" the listed items. Because the City has failed to establish that the requested records still at issue were "compiled in the process of detecting and investigating statutory or regulatory violations" or adequately demonstrate how disclosure of the information contained therein would harm the Providence Police Department, we conclude that its reliance on KRS 61.878(1)(h) was misplaced. Accordingly, the PPD must disclose the requested records to Ms. Brown for inspection and copying.
In a letter directed to Jerry Fritz, the mayor of Providence, on February 3, 2004, Ms. Brown framed her request as follows:
Pursuant to [the] Kentucky Open Record[s] Law, I hereby request the following information:
Copies of any and all orders/invoices made through the Fire/EMS Dept., Police Dept., Dept. of Public Works, General Administration, or Police Drug Fund for the year 2003, from January 1 through December 31 for these type[s of] items:
1. Communications Equipment (hand held radios to be included)
2. Cellular Phones
3. Surveillance Equipment (including remote viewing equipment)
4. Remote Listening Device Equipment
5. Photographic Equipment
I am also requesting copies of the City Account or Fund that paid for these items. . . .
In a response dated February 6, 2004, Mr. Fritz partially denied Ms. Brown's request. Because "most, if not all items listed would have been purchased from the Special Drug Fund Account[,]" Mr. Fritz was "unable to submit the documents requested" at that time. As further explained by Mr. Fritz:
Police Chief Ronnie Braden spoke with [District] Judge Rene Williams 1 in reference to the items requested[.] Her advice was to not release such information until she could do some research on the matter, due to the confidentiality of the war against drugs. Judge Williams informed Mr. Braden that if you had any questions concerning this matter to feel free to contact her at (270) 639-5951.
All documents in reference to all purchases funded from all other accounts other than the special drug fund are located here in the utility office. These records are available to you at any time during [the] normal business hours of the utility office. Please feel free to contact the office for any further information.
Ms. Brown now appeals from the denial of her request, arguing that the requested records "may be needed in the pursuit of actions required by the City Council to deal with certain issues pertaining to the City of Providence." Because the City has agreed to disclose all records relating to purchases funded from accounts "other than the special drug fund," any issues relating to those records are moot. Because we "shall decline to issue a decision" in such matters, our analysis focuses exclusively on the propriety of the City's denial of access to the specified records of the Providence Police Department. 40 KAR 1:030, Section 6.
In supplemental correspondence received by this office after Ms. Brown initiated her appeal, Richard E. Peyton, the Providence City Attorney, elaborates upon the City's position. As explained by Mr. Peyton, the City "objects to the release of information pursuant to the exemption provided in KRS 61.878 pertaining to records of law enforcement agencies" because "[r]elease of this information would harm the agency by the premature release of information to be used in several ongoing and prospective law enforcement investigations." In support of this contention, Mr. Peyton offers the following reasoning:
The Providence Police Department does not want any person who might be involved in criminal activity to know what equipment the City of Providence has at its disposal in the prevention, detection and investigation of crime. The Department has hand[]held radios and cellular telephones and we can provide the price paid for hand held radios and cellular telephones. However, we do not want those who might engage in criminal activity to know what kind of surveillance equipment, remote viewing equipment, remote listening devices or photographic equipment the City has. For the same reasons, if the City does not have any of this equipment, we do not want those who might break the law to know that such equipment is not available.
The release of this information will quite definitely affect the ability of the Providence Police Department to carry out its law enforcement function, and will jeopardize the public safety in Providence, Kentucky.
Based on the following authorities, we conclude that the City's response is both procedurally deficient and substantively incorrect.
KRS 61.880(1) sets forth the mandatory procedural guidelines with which an agency must comply in responding to an open records request. 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 three (3) 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. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
In responding to Ms. Brown's request, the City did not cite an exception that authorized the withholding of the requested records as required by this provision. "Denial of an open records request must be articulated in terms of the requirements of the statute." 97-ORD-105, p. 1. Because the City failed to cite the statutory exception upon which it relied in denying Ms. Brown's request as to the records at issue, and explain how the exception applies to those records, its response was procedurally deficient. As this office has consistently recognized, the procedural requirements of the Open Records Act are "not mere formalities but are an essential part of the prompt and orderly processing of an open records request." Id., citing 93-ORD-125. In Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996), the Kentucky Court of Appeals observed:
The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.
Generally speaking, an agency cannot postpone or delay complying with the statutory deadline as the City did here. Although responding within three days is frequently an onerous task for a public agency, the only exceptions to the general rule codified at KRS 61.880(1) are KRS 61.872(4) and 61.872(5). 98-ORD-71, p. 2. Unless the person to whom the request is directed does not have custody or control of the records, or the records are in active use, in storage, or otherwise unavailable, "the agency is required to notify the requester of its decision within three working days, and to afford the requester timely access to the requested records." Id., citing 93-ORD-134. However, if access to the records will be delayed by more than three working days after an open records request has been made, the agency is required "to immediately notify the requester and provide a detailed explanation of the cause for further delay as well as the place, time and earliest date on which the public record will be available for inspection. " Id., citing KRS 61.872(5).
In denying Ms. Brown access to the specified records of the Providence Police Department, the City merely informed her that Judge Williams had advised Chief Braden not to release the requested records "until she could do some research on the matter." Such an explanation cannot properly be characterized as "detailed." Noticeably absent from the City's response is any reference to the "time, place and earliest date on which" the requested records would be available for inspection. In short, the City's response was inconsistent with both the "general rule" and the cited "exceptions." Because the City failed to notify Ms. Brown of its final decision regarding disclosure of the requested records within three working days and either afford her access to the records within that time frame or provide a detailed rather than impermissibly vague explanation of the reason for the delay as mandated by the provisions of the Act, its response was procedurally deficient in this regard as well. A "limited and perfunctory response" does not "amount[]to substantial compliance." Edmondson, supra, at 858. To ensure its compliance with the Open Records Act, we urge the City to review these provisions before responding to future open records requests.
On appeal, the City again fails to cite a specific exception to justify its denial. In referencing the "exemption provided in KRS 61.878 pertaining to records of law enforcement agencies, " the City is presumably relying upon KRS 61.878(1)(h), albeit implicitly. That being said, we remind the City that a response submitted pursuant to 40 KAR 1:030, Section 2, should be viewed as an opportunity to supplement rather than supplant its original denial because the Open Records Act "presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office will consider supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the requester's letter of appeal, or which offer additional support for the agency's original denial. Id. In responding to future open records requests, the City should also be guided by these observations.
Turning to the substantive issue presented for resolution, it is the opinion of this office that the City has failed to satisfy its burden of proof under KRS 61.880(2)(c) and 61.878(1)(h), and, therefore, must make those existing records in its custody that are responsive to Ms. Brown's request available for her inspection and copying.
Consistent with the fundamental 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 of the Open Records Act, must be "strictly construed" to afford the broadest possible access to public records. KRS 61.871. Pursuant to KRS 61.878(1)(h), the following public records are exempt from public inspection absent a court order to the contrary:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory 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[.]
When, as is the case here, an agency relies upon KRS 61.878(1)(h) in denying access to public records, 2 the need for specificity is "particularly compelling." 00-ORD-196, p. 3. In construing this provision, the Attorney General has repeatedly observed:
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 other 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); 03-ORD-15; 02-ORD-179; 00-ORD-196; 99-ORD-162; 99-ORD-93; 97-ORD-129; 97-ORD-93.
Although we are aware of no authority that is directly on point, this issue has arisen in a variety of contexts and the analysis remains the same. 3 It is beyond dispute that the Providence Police Department is a law enforcement agency as required to trigger the application of KRS 61.878(1)(h) , so the question becomes whether the requested records "were compiled in the process of detecting and investigating statutory or regulatory violations." Here, as in 97-ORD-129, we conclude that the public agency has not established that the records in question satisfy this requirement, much less demonstrated that premature disclosure of the records would be harmful meaning its reliance on KRS 61.878(1)(h) was misplaced.
As we observed in 97-ORD-29, the quoted language has "generally been interpreted as being applicable to such records as notes, witness statements, and documentary evidence gathered in the course of an investigation into a specific incident or incidents involving statutory or regulatory violations." Id., p. 2. Said another way, this phrase refers to those records "actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process." 97-ORD-93, p. 5, citing OAG 89-11. In our view, this interpretation finds support in the next full sentence following this critical language which provides: "Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after the enforcement action is completed or a decision is made to take no action." 97-ORD-29, p. 2. Clearly, this statement contemplates the existence of an actual, ongoing investigation. Noticeably lacking from the record in this appeal is any evidence to substantiate the City's claim that the requested records are being "used in several ongoing and prospective law enforcement investigations." In short, the City's reliance on KRS 61.878(1)(h) to justify nondisclosure of the specified purchase orders/invoices suggests a liberal construction of this exception that is not warranted by its express terms.
Because the City has not established that the records in dispute were "actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process," let alone demonstrated how premature disclosure of those records would harm the Providence Police Department, we conclude that the City has failed to satisfy its burden of proof as required to successfully invoke KRS 61.878(1)(h). Accordingly, the City's reliance on this provision was improper. Having failed to articulate a legally supportable basis for denying Ms. Brown's request, the City must furnish her with copies of the records upon receipt of a reasonable copying fee.
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.
Rayma Brown401 North BroadwayProvidence, KY 42450
Mayor Jerry R. FritzCity of Providence201 East Main StreetProvidence, KY 42450
C. Rene WilliamsDistrict JudgeCourthouse25 U. S. Highway 41A-SP. O. Box 126Dixon, KY 42409-9126
William Clint ProwWebster County AttorneyP. O. Box 308Dixon, KY 42409
Richard E. PeytonProvidence City AttorneyFrymire, Evans, Peyton, Teague and CartwrightP. O. Box 695Madisonville, KY 42431
Footnotes
Footnotes
1 Since the record contains no indication that the current matter is also the subject of pending litigation, it is unclear why Mr. Braden consulted Judge Williams. District courts are not vested with jurisdiction to decide open records issues. Pursuant to KRS 61.882(1), the "Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained shall have jurisdiction to enforce the provisions of [the Open Records Act. ]"
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2 As we observed in 97-ORD-93, this office has consistently held that "records of police departments are, in general, subject to inspection unless specifically exempted by statute. OAG 76-478; OAG 77-102; OAG 79-582; OAG 91-131; 94-ORD-133."
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3 Applying this analysis, the Attorney General has consistently rejected denials based on KRS 61.878(1)(h) with the common thread among the decisions being the failure of the public agency to satisfy the second and/or third prong of the test. See 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, the Kentucky Board of Medical Licensure failed to justify its denial of an open records request with proof of the harm caused by premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in 911 tape would harm the city was insufficient to satisfy statutory burden of proof) ; 96-ORD-56 (Kentucky Labor Cabinet failed to establish that disclosure of records in occupational safety and health investigative file would harm the agency, and, therefore, did not satisfy the second requirement); 96-ORD-37 (Finance and Administration Cabinet failed to make requisite showing relative to invocation of KRS 61.878(1)(h) in denying access to records relating to Kentucky Board of Respiratory Care licensees); 96-ORD-155 (because Department of Insurance was not engaged in investigating statutory or regulatory violations and would not be harmed by disclosure of rate filings, its reliance on KRS 61.878(1)(h) to withhold those filings was improper); 99-ORD-162 (because maintenance and other records relating to a radar unit and an officer's training to use the unit did not satisfy the second requirement of KRS 61.878(1)(h) and the Jefferson County Police Department did not demonstrate the harm that would result from premature disclosure of the records, its reliance on KRS 61.878(1)(h) was improper); 00-ORD-196 (Jefferson County Corrections Department failed to demonstrate that any harm would result from disclosing the videotape of an incident that occurred at the Hall of Justice); 02-ORD-179 (record on appeal was devoid of proof that the Oldham County Animal Shelter compiled records relating to the care of rescued animals in the process of detecting and investigating statutory or regulatory violations or that disclosure of the records would harm the agency); 03-ORD-015 (Justice Cabinet did not satisfy its statutory burden of proving that disclosure of the subject report would harm it).
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