Request By:
Layne Bruce, Editor
Stacy Neitzel, Reporter
Glasgow Daily Times
P.O. Box 1179
Glasgow, KY 42142-1179Jim Carroll
Kentucky Department of parks
Capital Plaza Tower
500 Mero St., Suite 1100
Frankfort, KY 40601-1974Teresa J. Hill, Executive Director, Office of Legal Services
Sarah O. Hall, Assistant General Counsel
Commerce Cabinet
Capital Plaza Tower
500 Mero Street, 24th Floor
Frankfort, KY 40601
Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Commerce Cabinet violated the Open Records Act in denying Glasgow Daily Times reporter Stacy L. Neitzel's June 3, 2004, request for a copy of the "incident report filed by park rangers at Barren River State Park Resort . . . regarding an accident which occurred at the park the week-end of May 29-30" in which a man was critically injured and subsequently died. For the reasons that follow, we find that the Cabinet's denial of Ms. Neitzel's request was partially violative of the Act.
The record on appeal reflects that shortly after the incident occurred, Ms. Neitzel orally requested a copy of the incident report and was advised by Cabinet spokesperson, Jim Carroll, to submit her request in writing. Mr. Carroll subsequently advised Ms. Neitzel "that the cause of the victim's injuries [was] not known but . . . there was a possibility of foul play." On June 6, 2004, The Glasgow Daily Times published a story containing this information. On June 9, 2004, Mr. Carroll notified Ns. Neitzel, through a faxed copy of an internal departmental email, that the requested ranger incident report "is not subject to release under the Open Records law because it is preliminary and may represent the premature release of information to be used in a prospective law enforcement action under KRS 61.878(1)(h) and (i)." The email's sender, Sarah O. Hall, Assistant General Counsel for the Commerce Cabinet, advised the recipient, Mr. Carroll, that he should "inform the paper that the Kentucky State Police are now involved in this matter," and that he should "indicate the exemption [s] to the paper and [provide] a brief explanation . . . ."
On appeal, Glasgow Daily Times' editor, Layne Bruce, questions the Cabinet's reliance on KRS 61.878(1)(h) and (i). He maintains that the record in dispute:
is very unlikely to contain any names of informants or prospective informants. The basic facts of the incident have already been widely reported and are subject of much talk and rumor within the community. Instead, the UOR usually contains the nature of the incident or offense; the identities of injured persons or victims; the time, date, and location of the accident or offense; and the public agency or agencies investigating the accident or offense. Consequently, it seems improbable the release of the report would jeopardize any legitimate investigation.
Reports such as the one we are requesting are routinely disseminated to news media by Kentucky State Police, municipal police agencies, county sheriff's departments and other law enforcement agencies.
Mr. Bruce also questioned the Cabinet's invocation of KRS 61.878(1)(i), noting that that exemption's protection extends "to preliminary documents under consideration by governing or legislative bodies . . .," and concluded that "[t]his is the first incident in [the newspaper's] experience where such reports have been denied . . . ."
In supplemental correspondence directed to this office following commencement of Mr. Bruce's appeal, Ms. Hall elaborated on the Cabinet's position. With reference to the invocation of KRS 61.878(1)(h), explained:
The [Department of Parks] is custodian of records maintained by its law enforcement division of park rangers, who are sworn peace officers. Historically, the DOP has asserted this exemption when records are involved in ongoing and open law enforcement or agency administrative investigations into circumstances such as the seriousness of the incident at Barren River State Resort Park, which has resulted in the unfortunate death of a young man. Because the investigation is active, a decision has not been made to take no action. Furthermore, the Kentucky State Police has become involved in the investigation.
Although the newspaper draws conclusions about the ranger report as to whether or not it contains informant information, the exemption is broader in that it allows nondisclosure where the disclosure of information would harm the agency by the premature release of information to be used in a prospective law enforcement action.
It was her position that the Cabinet's actions should be affirmed "because there is both an ongoing Kentucky State Police investigation and a departmental investigation into the facts and circumstances of the serious incident at Barren River State Resort Park."
Additionally, Ms. Hall argued, the disputed record qualifies for protection under KRS 61.878(1)(i) "because the report is a preliminary document in an ongoing fact finding investigation where the DOP has not taken any final action." On behalf of the Cabinet, she asserted that "disclosure of information during an ongoing investigation involving names of persons who may be witnesses or who may possess information would have a chilling effect on an ongoing administrative and law enforcement investigation." In support, Ms. Hall cited 99-ORD-74, affirming the Kentucky State Police's denial of a request for "investigative files relating to the deaths of" two individuals, and recognizing that "[h]owever compelling the requester's need for the record, it is the nature of the record that is controlling." 99-ORD-74, p. 1, 2 (emphasis in original). Pursuant to KRS 61.880(2)(c) , this office requested, and the Cabinet provided us with, a copy of the incident report in dispute. Our review of that record confirms only in part the Cabinet's denial of the request.
To begin, we find that the mechanism by which Ms. Neitzel's request was denied did not satisfy the procedural requirements of the Open Records Act. Those requirements are codified at KRS 61.880(1), which 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 93-ORD-125, this office expressly held that "forwarding a copy of a very brief and cursory internal memo to [the requester] does not satisfy the public agency's procedural obligations under KRS 61.880(1)." 93-ORD-25, p. 3. Specifically, we noted, the "response":
failed to directly notify "the person making the request" . . . of [the agency's] decision . . ., [did] not contain an express statement to th[e] effect [that the request is denied] . . ., [and was not] clear[ly] issued by the official custodian of the record or under his or her authority.
Id. These same deficiencies exist in the Cabinet's "response" to Ms. Neitzel's request. In addition, and despite Ms. Hall's instructions, the Cabinet offers no explanation of how the cited exemptions apply to the records withheld. We urge the Cabinet to review KRS 61.880(1) and to remember, as we first noted in 93-ORD-125, that 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.
Turning to the substantive issue in this appeal, we find that established legal authority only partially supports the Cabinet's position. In an early open record decision, this office recognized that records of law enforcement agencies are subject to public inspection unless they are specifically exempted by statute. OAG 76-478. In that decision, we observed:
Police departments do not have the authority to act privately, confidentially or secretly unless expressly authorized in particular kinds of cases.
OAG 76-478, p. 2. We later reaffirmed this position, noting that "[t]he sovereign is a party to police actions and therefore the public has a right to inspect the records of . . . [its] actions." OAG 76-511, p. 4. These decisions were premised on the notion that:
Secret police activity without some overriding justification is repugnant to the American system of government. Consequently, when a citizen reports a crime to the police he may generally expect that the news media will learn of the report.
[A law enforcement agency] is the servant of the people and if a citizen wants the Services of [that agency] to investigate a crime, he cannot expect that the matter will be kept secret.
OAG 80-144, p. 1, 2. On this basis, the Attorney General determined in OAG 77-102, and in succeeding open records decisions, 1 that police incident reports, as opposed to investigative files, are not, generally, exempt from public inspection. 2 The Department of Parks' policy relative to nondisclosure of incident reports involving "ongoing and open law enforcement or agency administrative adjudications" conflicts with this well-established line of authority.
Nevertheless, the Attorney General has also recognized that portions of such records may be redacted by a law enforcement agency if the agency can articulate a basis for partial nondisclosure in terms of the requirements of one or more of the exceptions to the Open Records Act. For example, in OAG 77-102, we stated that "[i]f a police department feels it necessary to withhold certain items from public inspection it may do so under KRS 17.150 [and/or KRS 61.878(1)(h)] but the burden is upon the custodian to justify the refusal of inspection with specificity." Under this line of reasoning, it is incumbent on the law enforcement agency to "separate the excepted and make the nonexcepted material available for examination," KRS 61.878(4), and to provide particularized justification for the partial nondisclosure. In OAG 88-64, we identified several categories of information that might qualify for exclusion, including "information about witnesses to a felony, about informants, [and] about the peace officers' comments or suggestions concerning the prosecution of the case . . . ." OAG 88-64, p. 4.
In denying Ms. Neitzel's request, the Cabinet relies on KRS 61.878(1)(h) , authorizing nondisclosure of:
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 construing KRS 61.878(1)(h), the Attorney General has repeatedly observed:
In order to successfully raise this exception, 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. 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 has been met.
95-ORD-95, pp. 2, 3; 97-ORD-93; 99-ORD-162; 00-ORD-196; 02-ORD-179.
Implementing this legislative mandate, in University of Kentucky v. Courier Journal & Louisville Times Co ., Ky., 830 s.w.2d 373 (1992), the Kentucky Supreme Court rejected a claim, advanced by the University, that records it compiled in the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h). The Court reasoned:
This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself, conceded that the NCAA, a private regulatory entity, is the only "agency" involved in "administrative adjudication. " Therefore, KRS 61.878(1)[(h)] would not apply.
University of Kentucky , at 377. Having failed to satisfy one part of the three part test found in KRS 61.878(1)(h), the Court rejected the University's claim.
Applying the same analysis, the Attorney General has rejected public agency reliance on KRS 61.878(1)(h) in a series of decisions. See, e.g., 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, Kentucky Board of Medical Licensure failed to justify denial of records request with proof of harm 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 three part test); 96-ORD-155 (Department of Insurance was not engaged in investigating statutory or regulatory violations and would not be harmed by disclosure of rate filings, and improperly relied on KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on law enforcement exception to withhold policy and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); 00-ORD-196 (Jefferson County Corrections Department failed to demonstrate any harm to the Department in disclosing videotape of incident that occurred in the Hall of Justice); 02-ORD-179 (record on appeal was devoid of proof that Oldham County Animal Shelter compiled records relating to care of rescued animal in the process of detecting and investigating statutory or regulatory violation or that disclosure of the records would harm the agency). The question of the propriety of agency invocation of KRS 61.878(1)(h) has thus arisen in various contexts, but the analysis remains the same. Given the requirement that the exemptions be strictly construed, codified at KRS 61.871, and the prohibition on agency custodians' use of KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884" contained in that exception, a public agency may only rely on KRS 61.878(1)(h) if it can clearly demonstrate that it satisfies each part of the three part test.
Although the Cabinet has indicated that the disputed record was generated by a park ranger, acting in his capacity as a peace officer, that it is engaged in an ongoing departmental investigation, and that "the Kentucky State Police has become involved in the investigation," the Cabinet has not described the nature of its investigation or to what end that investigation is directed. Nor has it described with any degree of specificity the nature of the harm to it or KSP that might be occasioned by disclosure of the incident report.
In OAG 89-11, this office held that the Jefferson County Police improperly relied on KRS 61.878(1)(h) in denying a newspaper reporter's request for tapes of radio transmissions between noon and 2:00 p.m. on January 10, 1989, during which time a police officer was killed. We focused not on the fact that these transmissions went out over public airwaves, but on the fact that "there must . . . be a showing that the agency would be harmed by "premature release of information to be used in a prospective law enforcement action" . . . [, and] only a bare claim is made in such regard." OAG 89-11, p. 4. There, we concluded that because the information contained in the disputed record had "already been made known to the public in substantial detail through news accounts that have already appeared[, t]here is no reason to believe releasing refinements in such information, or a [record] that might recount such facts, would constitute a harmful, premature, release of information, within the meaning of KRS 61.878(1)(h)." OAG 89-11, p. 3. See also, 95-ORD-95 (Transportation Cabinet's reliance on KRS 61.878(1)(h) to deny access to records misplaced because Cabinet was not a law enforcement agency or an agency involved in administrative adjudication) ; 03-ORD-015 (Justice Cabinet failed to make requisite showing of harm to support claimed exemption) .
Our review of the record in dispute, which differs in kind from incident reports with which we have dealt in the past because it contains a substantial narrative section, nevertheless confirms that much of the information it contains has "already been made known to the public . . . through news accounts . . . ." Resolution of this appeal against the Cabinet, in part, therefore turns on its failure, or inability, to make an adequate showing that it, or the Kentucky State Police, would be harmed by premature release of the report. Because the professed harm that would flow from premature disclosure consists of little more than a bare claim, we find that the Cabinet failed to meet its statutory burden of proof in sustaining its denial of pages 1 and 3 of the report and the written statement prepared by the park employee who discovered the victim's body. Because page 2 of the report and the second written statement identify witnesses, and contain information that might be used in a prospective law enforcement action, we affirm the Cabinet's denial of this portion of Ms. Neitzel's request.
With reference to the Cabinet's argument that the report is protected from disclosure by operation of KRS 61.878(1)(i) authorizing the withholding of "[p]reliminary drafts, notes, [and] correspondence with private individuals other than correspondence that is intended to give notice of final action of a public agency, " we refer the parties to 99-ORD-27, a copy of which is attached hereto and incorporated by reference. There, we held that the City of Louisville improperly relied on KRS 61.878(1)(i), as well as KRS 61.878(1)(j) , in denying a request for police incident reports. We believe that 99-ORD-27, and not 99-ORD-74, upon which the Cabinet relies and which involves investigative files rather than incident reports, is dispositive of the final issue on appeal. Consistent with this decision, we find that the Commerce Cabinet must release pages one and three of the requested report and the accompanying written statement filed by the park employee who discovered the victim's body, but may withhold page two of the report and the second written statement accompanying the report.
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 See also, OAG 80-210, OAG 89-76; OAG 91-50; 99-ORD-27; 02-ORD-36.
2 See, e.g., OAG 83-366, p. 1 ("This office has held that while police incident reports are open to public inspection, case files are not open as long as the case is pending.")