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 Kentucky State Police violated the Kentucky Open Records Act in its disposition of Michael J. Mezo's request for copies of specified investigatory records. Failing to respond in writing to Mr. Mezo's request within three business days, cite the applicable exception, and briefly explain how it applies to the records withheld, as the KSP apparently did here, constitutes a violation of KRS 61.880(1). On appeal, the KSP properly invokes KRS 61.878(1)(h), and KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), albeit implicitly, in denying Mr. Mezo access to the requested records because the subject investigations are still classified as open. In sum, the response of the KSP is procedurally deficient but substantively correct.
By letter dated February 28, 2005, Mr. Mezo narrowed the scope of a previous request sent on or around February 14, 2005, for copies of all records in the possession of the KSP relating to him by describing the records being sought as follows:
1) On or about October 4, 2001, State Police Det. Brian Babbs of the Henderson post traveled to Carbondale, Illinois and assisted in the search of apt. # 34, 501 E. College Street. I would like all files, documents, lists, and any other record compiled or obtained by Det. Bobbs in relation to this search;
2) Any [], warrants, criminal complaints or such [] made, obtained, or applied for against me by Det. Brian Babbs or state Trooper time Roscoe;
3) Any case files, investigative reports, correspondence or any lists of evidence obtained and/or any other such [] records pertaining to the following investigations: 16-01-819, 16-01-820, 16-01-821, 16-01-544, 16-02-1635;
4) In October-December 1991, I was the subject of a joint investigation conducted by the FBI and the [KSP] concerning a bank robbery in Smiths Grove, Ky. I would like to request any case files, investigative reports, and all other such [] records pertaining to this bank robbery.
Having received no response to his revised request, Mr. Mezo initiated this appeal by letter dated April 28, 2005. On appeal, Mr. Mezo contends that he sent a "follow-up letter" directly to Debborah Arnold, KSP Custodian of Records, requesting to be advised as to the costs associated with honoring his request but "never received any reply whatsoever to this request either." Noticeably absent from Mr. Mezo's appeal are copies of the referenced correspondence with the exception of his revised request, a copy of which had to be submitted to perfect his appeal.
Upon receiving notification of Mr. Mezo's appeal from this office, Marlene Mundine, Administrative Specialist, Office of Legal Services, responded on behalf of the KSP. According to Ms. Mundine, the five cases specified by Mr. Mezo "remain open." Therefore, "any information contained within those [case files] must be denied." If upon review the KSP determine these cases can be closed, copies of the files will be sent to Ms. Mundine "for redaction and release to Mr. Mezo." Although Mr. Mezo did not specifically request the files from case nos. 03-01-397, 03-01-398, and 03-91-1819, "it appears that three additional ones do exist in archives that may relate to information he seeks to obtain." Accordingly, Ms. Mundine has requested that these case files, as well as the file from "the '91 armed robbery case # 03-91-1777" be sent to her "for redaction and release to Mr. Mezo." On appeal, the KSP offer no explanation for the delay in responding to Mr. Mezo's request. With the exception of this procedural violation, the KSP has fully complied with the Open Records Act.
As a public agency, the KSP must comply with both the procedural and substantive provisions of the Open Records Act. KRS 61.880(1) sets forth the procedural guidelines to which a public agency must adhere in responding to requests submitted pursuant to the Open Records Act. 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 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. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals has observed: "The language of the statute directing agency action is exact. It requires the custodian of records to give particular and detailed information in response to a request for documents." Edmondson v. Alig, Ky., 926 S.W.2d 856, 858 (1996). As evidenced by the italicized language, the public agency must issue a written response within three business days of receiving a request. However, a "limited and perfunctory response," does not "even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Id. 1
Failing to respond in a timely and proper fashion, as the KSP did in this matter, constitutes a clear violation of KRS 61.880(1). Public agencies are not permitted to elect a course of inaction. 2 As consistently recognized by the Attorney General, the procedural requirements of the Act "'are not mere formalities but are an essential part of the prompt and orderly processing of an open records request.'" 04-ORD-114, p. 3, citing 93-ORD-125, p. 5. 3 To avoid future violations, the KSP should review and comply with KRS 61.880(1) in its entirety.
With respect to those files relating to the "'91 armed robbery case," and the other files which may contain responsive information, the KSP has agreed to provide a redacted version of the files to Mr. Mezo. Accordingly, any issues relative to those records are now moot assuming the KSP satisfies its statutory burden of proof as to those portions redacted. 40 KAR 1:030 Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. In applying this mandate, the Attorney General has consistently held that if access to public records for which inspection or copying is sought is initially denied but subsequently granted, "the propriety of the initial denial becomes moot. " 04-ORD-046, p. 5, citing OAG 91-140. Absent objective evidence to the contrary, this office assumes that the KSP has provided Mr. Mezo with redacted copies of any existing nonexempt records which are responsive to his request. That being the case, the Attorney General must decline to issue a decision on the merits as to those records.
Turning to the substantive issue presented, the KSP properly denied Mr. Mezo's request for the specified investigatory records because the subject investigations are "open" or ongoing. Pursuant to KRS 17.150(2): "Intelligence 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 public 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. Early on, the Attorney General analyzed the purpose of KRS 17.150(2) and its "companion statute," KRS 61.878(1)(h), 4 observing that investigative 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 (citation omitted). Although a public agency cannot indefinitely postpone access to investigative records merely by continuing to classify an investigation as ongoing, 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. In our view, 04-ORD-041, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. Once the investigations are completed or a determination not to prosecute has been made, the investigative records at issue will be subject to inspection unless excluded from application of the Open Records Act by another statutory provision. 5
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.
Michael J. Mezo108 Court RowGreenville, KY 42345
Debborah ArnoldCustodian of RecordsKentucky State Police919 Versailles RoadFrankfort, KY 40601
Marlene MundineAdministrative SpecialistOffice of Legal ServicesKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 In general, a public agency cannot postpone or delay complying with this statutory deadline. "The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)." 02-ORD-165, p. 3. On this issue, the reasoning of 05-ORD-064, a copy of which is attached hereto and incorporated by reference, is equally applicable here.
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2 Although there is no objective evidence of record to substantiate Mr. Mezo's allegation, the KSP does not object so this office has no reason to question his veracity.
3 Although the KSP responded upon receiving notification of Mr. Mezo's appeal, a response issued pursuant to 40 KAR 1:030 Section 2 "should be viewed as an opportunity to supplement, and not to supplant, its original denial" as the Act presumes that the agency's initial response "is complete in and of itself." 02-ORD-118, p. 3. Accordingly, this office considers supplemental responses that correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or which offer additional support for the agency's original denial. Id. Although the KSP correctly withheld the requested files because the subject investigations are still open, the KSP neglected to cite the applicable statutory provisions that authorize this action. To this extent, the KSP's supplemental response is also procedurally deficient.
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4 Among those records excluded from application of theOpen Records Act absent a court order are those described at KRS 61.878(1)(h), which, in relevant part, provides:
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 records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
5 It is unclear from the record whether the second category of records identified by Mr. Mezo is encompassed by those records which the KSP has either agreed to provide Mr. Mezo with or to which the KSP has properly denied access. If not, the KSP must provide Mr. Mezo with copies of any existing records which are responsive to his request, or deny access in writing by citing the specific exception and briefly explaining how it applies to the records withheld in order to satisfy its burden of proof as to those records.
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