05-ORD-003 | KOGC

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 Winchester Police Department violated the Open Records Act in denying Winchester Sun reporter Tim Weldon's November 15, 2004, request to inspect "all criminal complaints filed with [the] Winchester police on November 16, 2004," including "all information contained on the second page that does not specifically harm [the Department's] investigation." 1 For the reasons that follow, we find that the Department did not meet its statutory burden of proof in denying Mr. Weldon's request.

In a response dated November 18, 2004, Winchester City Manager Ed Burtner advised Mr. Weldon that his request was under review pending receipt of an opinion from City Attorney William A. Dykeman on the question of access to page two of the requested records. 2 On November 24, Mr. Burtner notified Mr. Weldon that his November 15 request was "denied for the reasons stated in the City Attorney's opinion of [November 23, 2004]," a copy of which was attached. Mr. Dykeman opined:

To the extent that the open records request for "all criminal complaints" is a misidentified demand for a complete uniform offense report, it is my opinion and advice that page 2 of said report is not subject to public disclosure until the offense is closed following a final judicial disposition, at which time the form may still require some redaction.

Page 2 of the UOR clearly contains investigative information, e.g., modus operandi, suspects, and witness identification and address. Publishing of such information could reasonably be expected to impede the efforts of law enforcement, and even place the involved citizens in danger. There is no requirement that such detail be subject to public disclosure.

In supplemental correspondence directed to this office following commencement of The Winchester Sun's appeal, Mr. Dykeman explained that the newspaper regularly obtains copies of page one of Uniform Offense Reports "at or near the time the reports are generated." However, he continued:

[S]ome of the information set out on page two pertains to personal information, disclosure of which would constitute an unwarranted invasion of privacy.

[A]s a practical matter, in the majority of instances when The Winchester Sun obtains page 1 of the Uniform Offense Report, the criminal investigation by the Winchester Police Department remains ongoing and is, therefore, not to be made public. In addition, on occasion page 2 of the report contains information which identifies or can lead to the identification of a confidential informant.

In support of the Department's position, Mr. Dykeman provided this office with a copy of a Uniform Offense Report from which information including the complainant's name and address had been redacted. In our view, the Department's response was procedurally deficient and substantively incorrect.

To begin, we find that the Winchester Police Department violated KRS 61.880(1) by failing to identify the specific exceptions to public inspection upon which it relied in partially denying The Winchester Sun's request and by failing to explain the application of those exceptions to the records withheld. 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.

Although the Department indicated that "page two of the Uniform Offense Report is not subject to public disclosure pursuant to KRS 61.870, et seq., " the Department did not directly reference one or more of the exceptions codified at KRS 61.878(1)(a) through (l) or offer an explanation of how those exceptions apply to reports generated on November 16, 2004. In construing KRS 61.880(1), the Kentucky Court of Appeals has 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.

Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). The Department's failure to discharge this statutory duty directly correlates to its failure to meet the burden of proof that is statutorily assigned to it. KRS 61.880(2)(c). 3

Turning to the substantive issue in this appeal, we find that established legal authority does not support the Department's policy of blanket nondisclosure of the second page of the requested records. 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, 4 that police incident reports, as opposed to investigative files, are not, generally, exempt from public inspection. 5 The uniform offense reports that are the subject of this appeal are the functional equivalent of the incident reports at issue in the cited opinions. The Department's policy of blanket nondisclosure of the second page of those reports 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.

Without making specific reference to it, the Department appears to rely 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.

Assuming arguendo that the disputed reports qualify under the first two parts of the three part test found at KRS 61.878(1)(h), the Winchester Police Department has not described any harm to it, or to its investigation, that would result from disclosure of those reports. Although the Department indicates that in most cases, investigations arising from the reports are ongoing, and that page two of the reports may contain information "which identifies or can lead to the identification of confidential informants, " it has not attempted to justify its denial of Mr. Weldon's request with specificity. In 04-ORD-188 this office rejected the agency's claim that portions of incident reports could be routinely redacted on the basis of KRS 61.878(1)(h), noting that the record on appeal was "entirely silent" on the question of harm to the agency. Similarly, in 04-ORD-104 we determined that the agency failed to meet its statutory burden of proof in sustaining the denial of a request for an incident report "[b]ecause the professed harm that would flow from premature disclosure consist[ed] of little more than a bare claim." Here too, the claims advanced by the Winchester Police Department are based on supposition and conjecture, and there is no description of the specific harm that will occur if Mr. Weldon is allowed to inspect these particular reports. Given the absence of particular and detailed information relative to these reports, we are unable to discern how the corresponding investigations will be impeded, undermined, or otherwise jeopardized by disclosure of the reports in their entirety.

The Winchester Sun acknowledges that portions of the reports may be withheld where specific harm is shown, but maintains that blanket nondisclosure of page two of the reports is impermissible. We agree. Having reviewed the report submitted by the Department in support of its position, portions of which were redacted prior to submission, we find that the Department may redact those portions of page two of the report that are categorized under the headings "Synopsis," " Modus Operandi, " "Accused," "Suspects," "Witnesses," "Evidence and How Marked," "Evidence Disposition," and "Attachments," but only if disclosure of those entries would reveal the identities of informants not otherwise known, or compromise the investigation or prosecution of a case, and only after it advises Mr. Weldon, in writing, that his November 15 request is partially denied on the basis of KRS 61.878(1)(h) and/or KRS 17.150. 6 It is, as noted, incumbent on the Department 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. The redacted uniform offense report submitted to this office by the Department in support of its position confirms that such redactions are entirely feasible. 7 We therefore find that the Department's policy of blanket nondisclosure of page two of the Uniform Offense Reports generated on November 16, 2004, is not supported by KRS 61.878(1)(h). To the extent that OAG 83-388 is inconsistent with this position, it is hereby withdrawn.

Nor are we persuaded that KRS 61.878(1)(a), on which the Department indirectly applies, authorizes blanket nondisclosure of page two of the report or, as a matter of policy, any categories of information on page one. That exception permits public agencies to withhold "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." In 04-ORD-188, this office expressly rejected an agency's attempt to withhold, as a matter of policy, categories of information from law enforcement records on the basis of KRS 61.878(1)(a). At page three of that decision, we opined that "a law enforcement agency violates the Open Records Act by engaging in the practice of withholding victims' names, addresses, and other personal identifiers from incident reports, absent a particularized showing of a heightened privacy interest outweighing the public's interest in disclosure. " 8 A copy of that decision is attached hereto and incorporated by reference. As this office concluded in 04-ORD-188, "[a]bsent a particularized showing [of a heightened privacy interest], the public has a legitimate interest in [law enforcement reports] and disclosure of the information they contain transgresses only minimally upon the privacy of the individuals who are the subjects of those reports." 04-ORD-188, p. 10. The Winchester Police Department's reliance on KRS 61.878(1)(a) was therefore misplaced.

Consistent with the position set forth above, the Department should review the uniform offense reports generated on November 16, 2004 and redact only those portions on page one and two of the reports for which it can articulate a basis for denial in terms of the statutory requirements. Alternatively, the Department and/or The Winchester Sun may appeal this decision by initiating action in the appropriate circuit court pursuant to KRS 61.880(5). 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.

Ashley C. PackDinsmore & Shohl1400 PNC Plaza500 West Jefferson StreetLouisville, KY 40202

William JacksonChief of PoliceCity of WinchesterP.O. Box 40Winchester, KY 40391

Ed BurtnerCity ManagerCity of WinchesterP.O. Box 40Winchester, KY 40391

William A DykemanCity AttorneyDykeman & Rosenthal31 W. Hickman StreetWinchester, KY 40392-0910

Footnotes

Footnotes

1 Although the Department did not object todisclosure of the requested records on this basis, Mr. Weldon's request was improperly framed as a prospective request for records that had not yet come into existence, namely, criminal complaints filed the day after he submitted his request. On this issue, the Attorney General has held that the right to inspect and copy records:

attaches only after those records have been "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). No such right attaches for records which have not yet come into existence. Simply stated, the Open Records Act governs access to existing public records.

97-ORD-18, p. 3 (emphasis in original); see also, 98-ORD-36; 02-ORD-36.