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 Livingston County Dispatch Center violated the Kentucky Open Records Act in denying the request of Griff Potter, News Director, WPSD-TV, for "a recording of any and all 911 calls that came into Livingston County dispatch or were transferred from another [c]ounty, on the night of June 2, 2005." With respect to the audiotape recording of the telephone call from the McCracken County dispatcher to the Livingston County dispatcher regarding the incident in question, the LCDC properly relied upon KRS 61.878(1)(h) in denying access as disclosure would harm the agency by premature release of information to be used in a prospective law enforcement action. Because the LCDC is not in possession of any other recordings which are responsive to Mr. Porter's request, the LCDC fully complied with the Open Records Act by notifying Mr. Porter in writing, and offering a credible explanation as to why, albeit belatedly.
In an undated letter directed to "Benny Quill, Custodian of Records," Mr. Potter requested copies of the specified records relating to "calls concerning a domestic disturbance and other incidents at the home of Joseph Calender, 347 Gillahan Road, just east of Ledbetter, KY," which resulted in the "shooting deaths of Joseph Calender and Livingston County Deputy Sheriff Roger Lynch." By letter dated June 14, 2005, Billy N. Riley, Livingston County Attorney, responded on behalf of the LCDC, advising Mr. Potter "that this matter is still under investigation by police." Implicitly relying upon KRS 61.878(1)(h), Mr. Riley denied Mr. Potter's request after being advised that premature release of this information "might impede the investigation." According to Mr. Riley, a decision as to "whether to release after completion of the investigation, will be made at that time." A request for the "release of 911 domestic calls can be denied due to the personal nature of such calls."
Acting in his capacity as counsel for WPSD-TV, Mark C. Whitlow initiated this appeal from the denial of Mr. Potter's request in a letter received by this office on June 28, 2005. As Mr. Whitlow observes, Mr. Riley's response "fails to state the specific exception authorizing the withholding of the record as required by KRS 61.880(1)." 1 Citing 94-ORD-144, Mr. Whitlow next argues that Mr. Riley's response "appears to be a blanket denial which is not favored." According to Mr. Whitlow, WPSD-TV is "experiencing more refusals by 911 agencies based on this 'police investigation' exception set forth in KRS 61.878(1)(h)." Relying upon 97-ORD-93, Mr. Whitlow correctly observes that the Attorney General established a three-part test to determine when an agency can successfully deny a request on the basis of KRS 61.878(1)(h). In support of WPSD-TV's position that the LCPD "cannot meet the standards set forth by [this] office," Mr. Whitlow asserts that the incident was highly publicized, both "shooters" were killed, there was a "female on the premises when the Deputy Sheriff arrived," and there is "no issue regarding any informant or surprise information." Moreover, "the station questions whether there is, in fact, any police investigation ongoing. "
Although the LCDC otherwise complied with KRS 61.880(1)(Mr. Whitlow advises this office that Mr. Potter sent his request on or about June 10, 2005, so Mr. Riley's response of June 14, 2005, would be timely), the failure of the LCDC to cite the applicable exception(s) constitutes a procedural violation of the Open Records Act. As long 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." 93-ORD-125, p. 5. On appeal, the LCDC cites KRS 61.878(1)(h), and quotes the language of KRS 61.878(1)(a), but does not cite to (1)(a) specifically. To avoid future violations of this nature, the LCDC should review and comply with KRS 61.880(1) in its entirety.
Although the LCDC addresses any omissions in either its supplemental response or in responding to the request by this office for additional documentation, a response issued pursuant to 40 KAR 1:030 Section 2 should be viewed by an agency as an opportunity to supplement rather than supplant its denial. "The Open Records Act presumes that the agency's KRS 61.880(1) response is complete in and of itself." 02-ORD-118, p. 3.
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Upon receiving notification of Mr. Whitlow's appeal from this office, Mr. Riley supplemented his response on behalf of the LCDC. To begin, Mr. Riley notes that Benjamin G uill, Livingston County Jailer, brought the request at issue to him. "The request was undated, was not signed, and was addressed to Benny Quill, Custodian of Records." As explained by Mr. Riley, the request involved a "domestic situation," during which both the alleged perpetrator and a Livingston County Deputy Sheriff were killed; the call was allegedly made "by the daughter of the alleged perpetrator." Mr. Guill advised Mr. Riley "that there was an ongoing investigation regarding the situation and the deaths." Accordingly, Mr. Riley sent a response denying the request on behalf of Mr. Guill in which Mr. Riley "referred to the investigation and the personal nature of the 911 call."
Based upon the information Mr. Guill subsequently provided to Mr. Riley, the "issue is probably moot," as Mr. Guill has "researched his records and advises [Mr. Riley] that [the LCDC] has no such recording. " As observed by Mr. Riley:
The telephone call referred to apparently was made from a cellular telephone. "911" calls made from cellular telephones in the Ledbetter community (on Paducah, McCracken, Kentucky telephone exchange) go to either McCracken County or Kentucky State Police Post 1. It appears that this particular call must have gone to McCracken County. There is no capability to transfer 911 calls between McCracken and Livingston County. It appears that the McCracken County dispatcher called the Livingston County dispatcher and provided the address of a possible domestic dispute. 2
Based upon the limited evidence of record, this office was unable to resolve the issues presented. To facilitate our review, the Attorney General posed the following questions to Mr. Riley pursuant to KRS 61.880(2)(c) and 40 KAR 1:030 Section 2:
1. Please confirm that no recording or other documentation of the 911 telephone call allegedly made by the daughter of the alleged perpetrator of the incident in question to the McCracken County dispatcher on June 2, 2005, [exists].
2. Please elaborate as to why no such recording would exist merely because the call was made from a cellular telephone.
3. [WPSD-TV] requested "any and all 911 calls that came into Livingston County dispatch or were transferred from another County, on the night of June 2, 2005." Please advise this office as to whether a recording of the call between the McCracken County dispatcher and the Livingston County dispatcher exists (as opposed to the initial call from the daughter to the McCracken County dispatcher) . If any such recording or related documentation exists, please forward a copy to this office for in camera review.
4. Please elaborate upon your assertion that the subject investigation is ongoing and/or provide documentation to substantiate this assertion.
5. Assuming the subject investigation is ongoing, please elaborate as to the harm that would result from disclosure of any existing public record which is responsive to the request at issue as required by the express language of KRS 61.878(1)(h).
In response, Mr. Riley advises this office that "McCracken County probably does have such a recording. " However, the Livingston County Jailer "does not have such a recording. " With respect to the request for clarification as to how a cellular telephone call affects the situation, Mr. Riley first notes that Livingston County is "not equipped to receive 911 calls directly. The calls first go to [KSP], and if possible are transferred here." However, there is no cellular tower in the Ledbetter community; the closest tower is in McCracken County. Therefore, "a cellular telephone call, from Ledbetter, Livingston County, would appear to come from McCracken County rather than Livingston County," and thus "go to the McCracken County dispatcher rather than KSP." In addressing the call between the dispatchers, Mr. Riley enclosed a copy of the audiotape and accompanying documentation for in camera review as requested. In addition, Mr. Riley advises this office that Mr. Guill has now informed him that a second 911 call was made that evening. "It must have been made from a residential telephone rather than a cellular telephone, since it went to KSP." However, the call could not be transferred, "possibly because the caller did not stay on the line long enough." Enclosed with Mr. Riley's response is a copy of the log documenting the call between the KSP dispatcher and the Livingston County dispatcher. "There is no tape recording (in Livingston County) of that call."
As to the status of the investigation, Mr. Riley spoke again with Detective Brent White, of KSP Post 1, on August 4, 2005, at which point Detective White advised him that the investigation remains ongoing. In addition, Detective White advised Mr. Riley "that there is an ongoing murder investigation regarding the death of Livingston County Deputy Roger Lynch," and "that there was a murder investigation regarding the death of Joseph Calendar." However, the latter investigation "has been reclassified as a justifiable homicide investigation," and remains ongoing. Detective White is "awaiting the results of tests being performed upon evidence at the [KSP] Forensic Laboratory," and is requesting that no evidence be released pursuant to KRS 61.878(1)(h).
With respect to the harm that could result from disclosure, Detective White advised Mr. Riley that "no definite conclusions have been reached, pending the results of forensic testing," and the "times of calls, distances, time of officer's arrival, time of contact with back up trooper and arrival, etc. are very important in determining if the statements of the two (2) witnesses (mother and daughter of Joseph Calendar) are accurate and match the evidence." Premature release of this information "could influence statements and testimony of the witnesses." Attached to Mr. Riley's response is a copy of a letter to this effect directed to him by Detective White on August 4, 2005, in which Detective White indicates that once "this information can be compared to witness statements and other evidentiary items, conclusions can be formed, and these cases will most likely be cleared." Until then, Detective White believes the requested audiotapes are exempt pursuant to KRS 61.878(1)(h). In conclusion, Mr. Riley asserts that "the actual 911 call would very likely contain 'information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.' KRS 61.878(1)(a)." Here, a young lady allegedly called 911 and relayed information regarding "a private situation occurring in her parents' home. The situation resulted in one of her parents and a deputy sheriff dying." In Mr. Riley's view, "this is exactly the type of communication that KRS 61.878(1)(a) excludes from the application of KRS 61.870 to 61.884. See OAG 91-50; OAG 90-143; and OAG 87-66." 3
As long recognized by the Attorney General, a public agency cannot afford a requester access to records that it does not possess or which do not exist. 04-ORD-036, p. 5; 03-ORD-205; 02-ORD-118; 01-ORD-36; 98-ORD-200; 91-ORD-17; OAG 87-54; OAG 83-111. A public agency such as the LCDC obviously cannot produce for inspection or copying records which it does not have. 02-ORD-118, p. 3. To clarify, the right to inspect attaches only after the requested records are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. In addressing the obligations of a public agency denying access to public records on this basis, the Attorney General has consistently observed that an agency's inability to produce records due to their apparent nonexistence is "tantamount to a denial, and it is incumbent on the agency to so state in clear and direct terms." 02-ORD-144, p. 3, citing 01-ORD-38, p. 9; 04-ORD-205.
Accordingly, this office has held that a public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that an agency discharges its duty under the Open Records Act by affirmatively indicating that no responsive records exist (or are in the custody of the agency) as the LCDC ultimately did here. 98-ORD-154, p. 2, citing 97-ORD-161, p. 3; 04-ORD-046, p. 4; 03-ORD-205, p. 3. On numerous occasions, the Attorney General has expressly so held. 04-ORD-205, p. 4; 04-ORD-177, p. 3, citing 04-ORD-036, p. 5; 03-ORD-205, p. 3; 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-205; 02-ORD-144; 94-ORD-140. To the contrary, the role of the Attorney General in adjudicating a dispute concerning access to public records is narrowly defined by KRS 61.880(2)(a), and this office is without authority to deviate from that statutory mandate.
In 1994, the General Assembly recognized an "essential relationship between the intent of [the Open Records Act] and those statutes "dealing with the management of public records, " and "the coordination of strategic planning for computerized information systems in state government" with the enactment of KRS 61.8715. To ensure "the efficient administration of government and to provide accountability of government activities, public agencies are required to maintain their records according to the requirements of these statutes." Id. Since this provision of the Open Records Act took effect on July 15, 1994, the Attorney General has applied a higher standard of review to denials based upon the nonexistence of the requested records.
In order to satisfy its burden of proof, an agency must offer some explanation for the nonexistence of the requested records (or lack of custody, as the case may be) at a minimum. See 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation). When, as is the case here, the agency denies having possession (or indicates that no such records exist), of the requested records (audiotape recording of the initial 911 call from the victim's daughter and the call between the KSP dispatcher and the Livingston County dispatcher) , and the record supports rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 02-ORD-118; 01-ORD-36; 00-ORD-83.
Because the LCDC made "a good faith effort to conduct a search using methods which [could] reasonably be expected to produce the records requested," as evidenced by the record, the LCDC complied with the Act, regardless of whether the search yielded any results, by notifying Mr. Whitlow that no responsive records were found, and providing a credible explanation as to why any such records would be in the custody of McCracken County with the exception of the audiotape provided for in camera review. 05-ORD-109, p. 3; 02-ORD-144; 01-ORD-38; 97-ORD-161; OAG 91-101; OAG 90-26; OAG 86-38. 4 In light of this determination, the question becomes whether the LCDC violated the Open Records Act in denying Mr. Potter's request as to the responsive audiotape in the custody of the LCDC.
In denying Mr. Potter's request as to the audiotape provided for in camera review, the Department relies primarily upon KRS 61.878(1)(h), which authorizes withholding:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory and 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 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. 5
95-ORD-95, pp. 2, 3; 02-ORD-179; 00-ORD-196; 99-ORD-162; 97-ORD-93. In University of Kentucky v. Courier-Journal & Times Co., Ky., 830 S.W.2d 373 (1992), the Kentucky Supreme Court implemented this legislative mandate, rejecting a claim by the University that records it compiled during the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h) because the University failed to satisfy the first part of the three-part test.
Applying this analysis, the Attorney General has rejected public agencies' reliance upon KRS 61.878(1)(h) in a series of decisions. 6 In short, the issue of whether an agency has satisfied the requisite criteria to successfully invoke KRS 61.878(1)(h) has arisen in a variety of contexts, but the analysis remains the same. 7 Considering the requirement that the exemptions be strictly construed, codified at KRS 6l.871, and the explicit prohibition against agency custodians using KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to KRS 61.884," a public agency may properly rely on KRS 61.878(1)(h) only if it can demonstrate that it satisfies all three components of the test contained therein as the LCDC has here.
As in 99-ORD-11, the instant appeal is distinguishable from the referenced line of decisions in one crucial respect; here, the agency has articulated the basis for denying access in terms of the requirements codified at KRS 61.878(1)(h) thereby satisfying its burden of proof. In his initial response on behalf of the LCDC, Mr. Riley advised WPSD-TV that the matter "is still under investigation by police," and that premature release of the audiotape "might impede the investigation," implicitly relying upon KRS 61.878(1)(h). On appeal, the LCDC cites KRS 61.878(1)(h), as well as several prior decisions of this office construing KRS 61.878(1)(h), without further elaboration. However, Mr. Riley elaborated as to the type of harm that would result from premature disclosure of the audiotape at issue in subsequent correspondence; his position is validated by the letter from Detective White. Because the subject audiotape is a record of a law enforcement agency compiled in the process of detecting and investigating a statutory violation, the disclosure of which would harm the LCDC by premature release of information to be used in a prospective law enforcement action, the LCDC properly relied upon KRS 61.878(1)(h) in denying access.
Although a public agency cannot indefinitely postpone access to investigative records by labeling an investigation "open and active," as recognized in OAG 86-80, 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; 04-ORD-114; 01-ORD-85. Once the investigation is completed or a determination not to prosecute has been made, any investigative records relating to the incident in question, including the audiotape, will be subject to inspection unless specifically excluded from application of the Open Records Act by another statutory exception.
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 KRS 61.880(1) contains the procedural guidelines to which public agencies 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 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 and or under his authority, and it shall constitute final agency action.
(Emphasis added). In construing this mandatory 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 provide detailed and particular information in response to a request for documents." Edmondson v. Alig, Ky., 926 S.W.2d 856, 858 (1996). A "limited and perfunctory response," however, does not "even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Id.
2 However, Mr. Riley believes his denial was proper. "The request/application was not signed. KRS 61.872(2)." According to Mr. Riley, "[t]he records (if we had them) contain 'information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.' KRS 61.878." Citing OAG 90-117, Mr. Riley further contends that "911 Calls, like the one requested, contain such information. OAG 90-117; see also [94-ORD-144]." That is particularly true given the events which precipitated the call. Further, the investigation of two deaths "warrants the denial" pursuant to KRS 61.878(1)(h) in his view.
3 Because the LCDC does not possess a recording of this 911 telephone call, consideration of this argument is unwarranted.
4 Pursuant to KRS 61.872(4): "If the person to whom the application if directed does not have custody or control of the public record requested, that person shall notify the applicant and furnish the name and location of the official custodian of the agency's public records. " Here, the LCDC has substantially complied with this provision on appeal, but must provide Mr. Whitlow with the name and contact information of the official custodian of records at the custodial agency, if known, in accordance with the express terms of KRS 61.872(4).
5 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.
6 See 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); 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, failed to satisfy the three part test); 00-ORD-196 (Jefferson County Corrections Department failed to demonstrate any harm to the Department that would result from disclosing the videotape of an incident that occurred in the Hall of Justice).
7 In 94-ORD-133, this office engaged in a lengthy analysis of the blanket policy adopted by the 911 dispatch center of denying access to dispatch logs on the basis of KRS 61.878(1)(a) or (h), holding that a generic determination by an agency that certain categories of records are excluded from application of the Act under these exceptions, or any other exception, does not satisfy the requirements of the law. To the contrary, the basis for exclusion of particular entries on a dispatch log must be articulated in terms of the applicable exception(s). In 94-ORD-144, the Attorney General extended this holding to audiotapes of 911 calls.