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 Oldham County Police Department violated the Kentucky Open Records Act in partially denying the request jointly submitted by Margie Thompson and Angela Thompson Lasseigne "for all reports, documents and other information relating to" a specified investigation, including the coroner's report, and "that portion of the [OCPD] Standard Operating Procedure relating to suicide and threats of suicide. " Because the subject investigation is "open/active," the OCPD properly relied upon KRS 61.878(1)(h) in denying their request for all records generated by that investigation. Having notified the requesters that the OCPD does not maintain or possess either the "JC3" or the coroner's report, and provided them with the name and location of both custodial agencies as mandated by KRS 61.872(4), the OCPD substantially complied with the Open Records Act as to those records. Any issues relative to the relevant section of the SOP are now moot as the OCPD has provided the requesters with copies of the responsive records. With respect to those records concerning the internal investigation into the conduct of named officers, the OCPD is authorized to withhold access on the basis of KRS 61.878(1)(i) and (j). With the exception of failing to cite the applicable exceptions in accordance with KRS 61.880(1), the OCPD discharged its statutory duty.
By letter dated May 14, 2005, Ms. Thompson and Ms. Lasseigne jointly requested "a formal investigation and report into the handling of an emergency in Pewee Valley late last Friday night, May 6, 2005, regarding Mike Thompson, who was threatening to shoot himself, and eventually did." In addition, they made a request under the Open Records Act "for all reports, documents and other information relating to this investigation, including the coroner's report."
In a response dated May 23, 2005, Lieutenant W. B. Way, Official Custodian of Records, advised Ms. Thompson and Ms. Lasseigne that he OCPD could provide them with "the complete uniform offense report" once the "case has been 'closed'." Enclosed was a copy of the "public synopsis" of the "open case" involving Mr. Thompson. Because the Coroner's Office is located in the same building as the OCPD, Lt. Way forwarded a copy of their request to that office. At the time, Lt. Way was unable to advise Ms. Thompson and Ms. Lasseigne regarding "what information [the coroner] may be allowed under the law to provide" them with. With respect to the "JC-3" report filed by the OCPD with the Cabinet for Health and Family Services, Lt. Way provided Ms. Thompson and Ms. Lasseigne with the named and address of the agency so they could request the form from the Cabinet.
Dissatisfied with this response, Ms. Thompson and Ms. Lasseigne initiated this appeal in a letter received by this office on June 7, 2005. In relevant part, Ms. Thompson and Ms. Lasseigne reiterate their request for "any and all documents related to the threat of suicide and suicide of Mike Thompson, and any related documents mentioning [their] names." Relative to the latter category of records, Ms. Thompson and Ms. Lasseigne rely upon KRS 61.884 as authority. As Mr. Thompson's "next of kin," they "make the same request for any such documents in which his name is mentioned." In closing, Ms. Thompson and Ms. Lasseigne request a copy "of that portion of the [OCPD's SOP] relating to suicide and threats of suicide" for the first time.
Upon receiving notification of the instant appeal from this office, Lt. Way responded on behalf of the OCPD by forwarding copies of the correspondence between the OCPD and the Thompson-Lasseigne family regarding the specified incident after County Attorney John Fendley reviewed the documentation. Among those records attached to Lt. Way's letter is a supplemental response dated June 8, 2005, in which Lt. Way advised Ms. Thompson and Ms. Lasseigne that the requested investigatory records are not currently subject to public inspection since the investigation is "open/active." However, once the case has been closed the records "will be open to public inspection" at which time Ms. Thompson and Ms. Lasseigne may resubmit their request pursuant to the Open Records Act. Advising Ms. Thompson and Ms. Lasseigne that the CHFS is the official custodian of the JC3, Lt. Way again provided the address to which their requested should be directed.
Although the Coroner's Office is located in the same building, the OCPD has "no control over when [it] receive[s] their records." However, Lt. Way forwarded a copy of the request at issue to the coroner since the OCPD is not currently in possession of any responsive records. Enclosed with Lt. Way's response is the OCPD policy "relating to the steps to be taken to insure the safety of a victim, including providing a safety plan and, if necessary, transporting the victim to a more secure location." With regard to the referenced complaint against Officers Moore and Johnson, Lt. Way advised Ms. Thompson and Ms. Lasseigne that the matter is currently under investigation, and Sergeant R.H. Bianco, the Supervisor assigned to investigate the incident, should be in contact with all parties involved. Upon completion of the investigation, Ms. Thompson and Ms. Lasseigne will "receive a summary of those findings."
Our analysis begins with those records which the OCPD provided to Ms. Thompson and Ms. Lasseigne upon receiving their letter of May 27, 2005, copies of which are attached to the OCPD's response on appeal. 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 long held that if access to the public records being sought for inspection or copying "is initially denied and then subsequently granted, the issue of 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 Ms. Thompson and Ms. Lasseigne have received copies of the SOP sections which are responsive to your request as reflected by the record. That being the case, any issues relative to those records are now moot, and this office must decline to render a decision on the merits as to those records.
With respect to those responsive records generated and maintained by the coroner and the CHFS, the OCPD has complied with the Open Records Act. As the Attorney General has consistently recognized, a public agency cannot afford a requester access to records that it does not have or which do not exist. 04-ORD-036, p. 5, citing O3-ORD-205, p. 3; 02-ORD-118; 99-ORD-98; 98-ORD-200; OAG 91-112; OAG 83-111; OAG 87-54. In other words, the right to inspect or copy attaches only if the requested records "have been prepared, owned, used, in the possession of or retained by a public agency. " 02-ORD-120, p. 2, citing 97-ORD-18; KRS 61.870(2). While a public agency obviously cannot furnish that which it does not have, "a written response that does not clearly so state is deficient. " 02-ORD-144, p. 3. Accordingly, this office has held that a public agency violates KRS 61.880(1) if its response "fails to advise the requesting party whether the requested record exists," 98-ORD-154, p. 2, citing 97-ORD-161, p. 3, with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively so indicating as the OCPD did here. 04-ORD-046, p. 4; 03-ORD-205, p. 3, citing 99-ORD-98.
Under circumstances like those presented, our duty is not "to conduct an investigation in order to locate records whose existence or custody is in dispute." 01-ORD-36, p. 2; 04-ORD-059. In short, the limited function of this office in the context of an Open Records appeal is to review the course of action taken by a public agency, not to locate the documents that a party has requested to inspect. 03-ORD-205, p. 3, citing OAG 86-35, p. 5. However, the analysis does not end there. Pursuant to KRS 61.872(4): "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " Here, the OCPD affirmatively indicated that it possesses neither the JC3 nor the coroner's report, 1 explained why any responsive records would be in the custody of the CHFS and the Coroner's Office, respectively, and provided the requesters with the address for both agencies and the contact person for the latter, thereby substantially complying with this legislative mandate. 2 Given our resolution of this issue, the question becomes whether the OCPD violated the Open Records Act in denying Ms. Thompson and Ms. Lasseigne access to the requested investigatory records pursuant to KRS 61.878(1)(h) because the investigation is still open/active.
In denying their request, the OCPD relied upon KRS 61.878(1)(h), albeit implicitly. KRS 61.878(1)(h) 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 the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
(Emphasis added). In 04-ORD-114, a copy of which is attached hereto and incorporated by reference, this office conclusively resolved the issue presented in this precise context.
Although OCPD committed a procedural violation in failing to cite the applicable exception(s), KRS 61.878(1)(h), and KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), as mandated by KRS 61.880(1), and provided only a cursory explanation of how the exception applies (the OCPD did not specify the harm that would result from disclosure) , the OCPD has confirmed that the investigation into Mr. Thompson's death is still "open/active," the minimum required to satisfy its statutory burden of proof. Both KRS 61.878(1)(h) and KRS 17.150(2) recognize that law enforcement agencies such as the OCPD may withhold investigative records until prosecution is completed or a decision not to prosecute has been made. Accordingly, this office finds no error in the position of the OCPD with the exception of the noted procedural deficiency.
Turning to the final category of records at issue, those concerning the ongoing internal investigation, this office reaches the same determination; the response of the OCPD is substantively correct, but procedurally deficient to the extent that the OCPD failed to cite KRS 61.878(1)(i) and KRS 61.878(1)(j). In our view, the analysis contained in 04-ORD-162, pp. 5-14, a copy of which is attached hereto and incorporated by reference, is equally applicable here, although a contrary outcome is dictated on the facts presented. Because no final action has been taken with respect to the complaint filed against the named officers, it stands to reason that no findings or recommendations have been adopted as the basis for such action. That being the case, the records requested are properly characterized as preliminary, and therefore remain exempt from public inspection at this time. See also 04-ORD-163; compare 02-ORD-25. Aside from failing to cite the applicable exceptions, the OCPD complied with the Open Records Act in denying the request for records generated by the internal investigation at issue.
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.
Margie Thompson105 Peace LanePewee Valley, KY 40056
Angela Thompson Lasseigne108 Peace LanePewee Valley, KY 40056
Lieutenant W. B. WayOfficial Custodian of RecordsOldham County Police Department1855 North Highway 393LaGrange, KY 40031
Chief Michael GriffinOldham County Police Department1855 North Highway 393LaGrange, KY 40031
John R. FendleyCounty AttorneyFiscal Court Bldg.100 West Jefferson StreetLaGrange, KY 40031
Footnotes
Footnotes
1 In a line of decisions dating back to 1982, the Attorney General has recognized that a coroner may withhold an autopsy report on the basis of KRS 61.878(1)(h) while criminal prosecution is contemplated or in progress. 97-ORD-81; 94-ORD-84; OAG 91-6; OAG 83-223; OAG 82-548. Likewise, KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), has been interpreted to authorize nondisclosure of an autopsy report while prosecution is pending. 01-ORD-131, p. 3. While a criminal prosecution appears to be unlikely in this context, the cited decisions are instructive as to limitations on the accessibility of such reports.
2 If the OCPD knows the name of the official custodian of records at one or both agencies, the OCPD must also provide this information to Ms. Thompson and Ms. Lasseigne in accordance with the express terms of KRS 61.872(4).
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