Opinion
Opinion By: Gregory D. Stumbo, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Louisville Metro Police Department violated the Kentucky Open Records Act in denying the request of David Leightty for copies of specified "radio or telephonic transmissions received, sent, or otherwise made" through LMPD dispatch on August 15, 2003. Because the requested records were not "compiled in the process of detecting and investigating statutory or regulatory violations," the LMPD erred in denying Mr. Leightty's request on the basis of KRS 61.878(1)(h).
By letter directed to Wm. David Sims, Police Legal Advisor, on February 24, 2005, Mr. Leightty requested access to the following records:
. Copies of all radio or telephonic transmissions received, sent, or otherwise made through Louisville Police communications, pertaining to the dispatch of officers between 12:01 a.m. and 4:00 a.m. on August 15, 2003, to the Bar of Louisville, or concerning the apprehension, transportation, request for medical assistance, or arrest of Erik Wolfe in the same time frame.
. Copies of all written or digital records concerning pertaining (sic) to the dispatch of officers between 12:01 a.m. and 4:00 a.m. on August 15, 2003, to the Bar of Louisville, or concerning the apprehension, transportation, request for medical assistance, or arrest of Erik Wolfe in the same time frame.
. A digital copy, if available, of all S.O.P.'s of the [LMPD] in effect as of August 15, 2003.
. Copies of the following S.O.P.'s of the [LMPD], as in effect on August 15, 2003:
In a response dated March 14, 2005, Mr. Sims partially denied Mr. Leightty's request. As observed by Mr. Sims:
There is an audio tape of radio communications relative to this case. The tape will not be released due to information relating to an ongoing criminal investigation. Accordingly, we must deny your request for this tape under the exemptions contained in KRS 61.878(1)(h).
In conclusion, Mr. Sims advised Mr. Leightty that the LMPD would comply with the remainder of his request by providing him with a compact disc containing the requested SOP's.
In a letter dated March 17, 2005, Mr. Leightty enclosed payment for the CD and observed that the response of the LMPD "does not make reference to the request for written or digital records connected with the communications." To determine whether to file an appeal with this office, Mr. Leightty asked for clarification as to whether the tape at issue is the original recording of the communications, and, if not, whether the original recording still exists. In addition, Mr. Leightty asked Mr. Sims to clarify the position of the LMPD regarding the written and digital records requested.
On March 24, 2005, Mr. Sims advised Mr. Leightty that the audiotape to which he is referring "is a copy of the original analog tape [,]" which still exists and "will be maintained in the Communications Section of the [LMPD] as evidence." With respect to the written and digital records, Mr. Sims advised Mr. Leightty as follows:
I am enclosing a paper (written) copy of the documentation of the radio transmissions from the August 15, 2003, event for your reference. Concerning your question of digital records, Telecommunications Supervisor Dan Logsdon explained that the original tape is an analog tape and that the [LMPD] does not now have the equipment available in the Communications Section to make a digital copy.
By letter dated March 28, 2005, Mr. Leightty initiated this appeal from the partial denial of his request. According to Mr. Leightty, "the communications were recorded in the ordinary course of business, and not as part of a criminal investigation, and are therefore not exempt. " Although the "initial LMPD response appears to have assumed that the request was for a compilation of copies of transmissions made for the criminal investigation [,]" that is incorrect. To the contrary, the request is for a copy of "the original recordings, made by radio (and any by telephone), as they were originally made and recorded in the LMPD communications center." Although a criminal prosecution stemming from the police run in question is ongoing, "that was not true on August 15, 2003." Citing OAG 89-11, Mr. Leightty correctly argues that the records protected by KRS 61.878(1)(h) are those "actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process." Conversely, the language of this provision does not encompass "electronic recordings of general police radio traffic," which are "segregated" in connection with an investigation such as those requested. To clarify, Mr. Leightty is requesting records "of general police radio traffic and general telephonic communications, which are made and kept ordinarily."
Upon receiving notification of Mr. Leightty's appeal from this office, Kris M. Carlton, Assistant Jefferson County Attorney, responded on behalf of the LMPD. Acknowledging "that the communications were recorded in the ordinary course of police business," Ms. Carlton observes that "such records are frequently compiled for use in a criminal investigation. " According to Ms. Carlton, there is incriminating evidence on the tape at issue, "which has been submitted to the Commonwealth's Attorney's Office for the prosecution of four police officers who have been indicted on assault charges." Because the criminal matter is ongoing, the LMPD "stands by its characterization of the record as exempt, in accordance with KRS 61.878(1)(h)." In the LMPD's view, the record requested should not be released until the conclusion of the pending criminal matter. 1 At that time, "Mr. Leightty may resubmit his request, and LMPD will provide the audio recording. " Because this appeal presents no reason to depart from governing precedent, namely, OAG 89-11 and its progeny, this office respectfully disagrees with the opposing position of the LMPD.
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 other eleven exceptions to the Open Records Act, must be "strictly construed" so as 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 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).
Our resolution of the instant appeal hinges on the meaning of the italicized language.
When, as is the case here, an agency relies upon KRS 61.878(1)(h) in denying access to public records, the need for specificity is "particularly compelling." 00-ORD-196, p. 3. In construing the relevant language of 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 an 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 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; 03-ORD-15; 02-ORD-179; 00-ORD-196; 99-ORD-162; 99-ORD-93; 97-ORD-129; 97-ORD-93. It is beyond dispute that the LMPD is a law enforcement agency as required to trigger the application of KRS 61.878(1)(h), so the question becomes whether the requested record(s) "were compiled in the process of detecting and investigating statutory or regulatory violations." Here, as in OAG 89-11, OAG 89-20, and 03-ORD-017, this office concludes that the public agency has not satisfied its statutory burden of proof by establishing that the records in question satisfy this requirement.
In
University of Kentucky v. The Courier- Journal and Louisville Times Co., Ky., 830 S.W.2d 373 (1992), the Kentucky Supreme Court implemented this legislative mandate, rejecting the University's claim that records it compiled during the course of a NCAA investigation were exempt from disclosure pursuant to KRS 61.878(1)(h). As observed by the Court:
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)[(j)] would not apply.
University of Kentucky, supra, at 377. Because the University failed to satisfy this threshold requirement, the first part of the three-part test codified at KRS 61.878(1)(h), the Court rejected its 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, the Kentucky Board of Medical Licensure failed to justify its denial of a records request with proof of the harm which would result from premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in a 911 tape would harm the city was insufficient to satisfy its statutory burden of proof relative to KRS 61.878(1)(h)); 96-ORD-56 (Kentucky Labor Cabinet failed to establish that disclosure of the records in an 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 the investigation of statutory or regulatory violations, would not be harmed by disclosure of rate filings, and improperly relied upon KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on the "law enforcement exception" to withhold the police 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 that any harm to the Department would result from disclosing the requested videotape of an incident which occurred in the Hall of Justice); 02-ORD-179 (the record on appeal was devoid of proof that the Oldham County Animal Shelter compiled records relating to the care of a rescued animal in the process of detecting and investigating statutory or regulatory violations or that disclosure of the records would harm the agency). Although the issue presented has arisen in various contexts, the analysis remains the same. Given the mandate that the exemptions to the Open Records Act be strictly construed, codified at KRS 61.871, and the prohibition against the use of KRS 61.878(1)(h) by agency custodians "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884" contained in that exemption, a public agency may rely upon KRS 61.878(1)(h) only if it clearly establishes that each part of the three-part test is satisfied.
Although the LMPD is clearly a law enforcement agency, it has not established that the audiotape requested is a record "compiled in the process of investigating statutory or regulatory violations," as opposed to being a public record which was generated contemporaneously with the event in question and later "segregated" in connection with an investigation. OAG 89-11, p. 3. Unless this criterion is met, consideration of whether the LMPD has demonstrated that release of the record would result in harm by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action is unnecessary. 2 In our view, the analysis contained in OAG 89-11 is equally determinative on the facts presented.
In OAG 89-11, which Mr. Leightty correctly cites in support of his position, the Attorney General held that the Jefferson County Police Department improperly relied upon KRS 61.878(1)(h) in denying The Courier-Journal access to an audiotape of police radio transmissions surrounding a specified criminal event. 3 Having established that such tape recordings are properly characterized as "public records" pursuant to KRS 61.870(2), the Attorney General observed:
In the view of this office, "records compiled in the course of detecting and investigating statutory violations" (as used in KRS 61.878(1)[(h)]) means those actively specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process. Such phraseology does not encompass electronic recordings of general radio traffic of a police agency, not made uniquely in a specific detection or investigation process, which were "segregated" in connection with an investigation.
OAG 89-11, p. 3 (emphasis added). Because the audiotape requested is a recording of "general radio traffic" not unique to the related investigation, the same result necessarily follows here.
Similarly, in OAG 89-20, this office held that the City of Winchester improperly denied a request to inspect police radio transmission logs generated by the Winchester Police Department on the basis of KRS 61.878(1)(h), then codified as KRS 61.878(1)(f). In so holding, this office explained the nature of the logs at issue as follows:
Police dispatch logs are typically seriatim notations, commonly of a summary character, of police dispatches and disposition codes, compiled collaterally to, and not integrally in the process of, detecting and investigating statutory violations, in contrast to, for example, an investigator's notes. Such logs have never been granted blanket exclusion from inspection by the public in this state. In order to be exempted from inspection pursuant to KRS 61.878(1)[(h)], particulars regarding given notations on a log would have to be articulated in terms of the requirements of the statute.
OAG 89-20, p. 2. As the Attorney General observed in 97-ORD-29, the quoted statutory 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. In other words, the critical phrase refers to "particular records, not to an entire class of records" such as audiotapes of the type requested. OAG 89-20, p. 2. Contrary to the LMPD's assertion, the fact that the investigation is ongoing, standing alone, does not render the audiotape exempt under the terms of KRS 61.878(1)(h) , nor does the fact that the audiotape has now been "segregated" in connection with the investigation.
On appeal, the LMPD concedes that the "communications were recorded in the ordinary course of police business," arguing that "such records are frequently compiled for use in a criminal investigation. " Although the record reflects that the audiotape captured an incident which resulted in an ongoing criminal investigation involving four police officers, and the audiotape is now included among those records which comprise the investigative file, the audiotape appears to have been made "collaterally to," or independent of, the ongoing investigation during the normal course of business, rather than as an "integral part" thereof. Accordingly, the LMPD has not satisfied the second element of the test as required to successfully invoke KRS 61.878(1)(h). Because the LMPD has not established that the record in dispute was "actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process," the LMPD has failed to satisfy its burden of proof relative to KRS 61.878(1)(h) , and must therefore honor Mr. Leightty's request.
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.
David Leightty973 Barret Avenue, Suite 2Louisville, KY 40204
Wm. Dennis SimsPolice Legal AdvisorLouisville Metro Police Department633 West Jefferson StreetLouisville, KY 40202
Irvin G. MazeJefferson County Attorney2086 Hall of Justice600 West Jefferson StreetLouisville, KY 40202
Kris M. CarltonAssistant Jefferson County Attorney2086 Hall of Justice600 West Jefferson StreetLouisville, KY 40202
Footnotes
Footnotes
1 According to Ms. Carlton, Mr. Leightty is "seeking to have these records released through Open Records, rather than discovery, for a Police Merit Board appeal." However, the Attorney General has long recognized that application of the Open Records Act is not "suspended in the presence of litigation," while acknowledging the "potential pitfalls of using the Open Records Act as a discovery tool." 03-ORD-226, p. 4 (citations omitted). Unless the requested record falls within one or more of the exceptions codified at KRS 61.878, public agencies are not permitted to deny access.
2 OAG 89-11, 98-ORD-31, and 03-ORD-015 are instructive on this issue.
3 As observed by this office, the recording at issue "was produced by a recorder associated with a radio receiver, monitoring, on an around-the-clock basis, all transmissions within receiving range on a given police radio frequency." OAG 89-11, p. 2.