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 Kentucky State Police violated the Open Records Act in the disposition of Michael Mezo's August 17, 2005, request for copies of records identified as follows:
1. Records generated by Trooper Brian Babbs in the course of his October 4, 2001, search of premises located at Apt. 34, 501 East College Street, Carbondale, Illinois;
2. Warrants, criminal complaints, and related records obtained by Trooper Babbs and Trooper Tim Rascoe 1 against Mr. Mezo;
3. Case files, investigative reports, correspondence, and evidence lists arising from investigations 16-01-544, 16-01-819, 16-01-820, 16-01-821, and 16-02-1635; and
4. Disciplinary records relating to Trooper Babbs and Trooper Rascoe.
For the reasons that follow, we find that this office's decision in 05-ORD-103 is, with the exceptions noted, largely dispositive of the issues on appeal. Accordingly, we affirm, in part, KSP's denial of Mr. Mezo's request but find that KSP erred in failing to follow the directives set forth in that decision and in failing to respond to his most recent request in a timely fashion.
The record on appeal reflects that on August 17, 2005, Mr. Mezo submitted his request to the records clerk at KSP Post 16, Henderson, Kentucky, apparently on the advice of Rick Stiltner, Official Custodian of Records for KSP. Having received no response to his request, Mr. Mezo initiated this appeal on August 29, 2005.
In correspondence directed to this office following commencement of Mr. Mezo's appeal, KSP Staff Attorney Brenn O. Combs explained that KSP's response to his request "was delayed because he did not submit his request to the custodian of records for the Kentucky State Police [at KSP's Headquarters in Frankfort]," but instead submitted his request to the Henderson Post. The Henderson Post then forwarded his request to KSP Headquarters, but the request did not reach Frankfort until August 29. On September 1, 2005, KSP issued a response to Mr. Mezo's request, through Mr. Stiltner and under the signature of Emily Perkins, in which KSP explained that "there are no disciplinary documents pertaining to either Trooper Babbs or Trooper Rascoe," and that "[t]he rest of the information is part of an investigation that is still open." Relying on KRS 61.878(1)(h), KSP explained that "[t]he cases cannot be closed until all evidence has been disposed of, regardless of the outcome of the Court system's case," and urged Mr. Mezo to "check with the Post 16 Records Clerk" to determine the status of the cases in anticipation of future requests.
We begin by noting that three of the four requests Mr. Mezo submitted to KSP on August 17, 2005, are nearly identical to the requests he submitted to KSP in February 2005, that culminated in this office's decision in 05-ORD-103. In response to these earlier requests, KSP notified Mr. Mezo that the five cases he identified "remain open" and "any information contained within those [case files] must be denied." This office affirmed KSP's denial of these requests on the basis of KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l) , and KRS 61.878(1)(h). Here, as in 05-ORD-103, the investigative records to which Mr. Mezo requests access relate to cases that remain open. In his September 7 letter to this office, Mr. Combs states that a motion for discretionary review in the case of Mezo v. Commonwealth, 2005-JC-000540, is currently pending before the Kentucky Supreme Court. Because the facts giving rise to Mr. Mezo's appeal remain unchanged, we find 05-ORD-103 controlling on the issue of access to investigative records. A copy of that decision is attached hereto and incorporated by reference. Additionally, we attach copies of 03-ORD-123 and 04-ORD-234, addressing the propriety of KSP's decision to classify a case as "open" even after a defendant has been convicted or pled guilty.
Having reaffirmed our earlier position that KSP properly invoked KRS 61.878(1)(h) and 17.150(2) in denying Mr. Mezo's request for investigative records that fall within the parameters of his first and third requests, we hasten to note that in footnote 5 of 05-ORD-103 we questioned KSP's reliance on these exemptions to withhold the records identified in his second numbered request, namely "warrants, criminal complaints, or such [] made, obtained, or applied for against [him] by Trooper Babbs or Trooper Rascoe." Questioning whether these records qualified for protection under the cited exemptions, the Attorney General expressly directed KSP to "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 [relied upon] and briefly explain how it applies to the records withheld . . . ." As records filed with the clerk of the court, complaints and warrants are generally accessible through the courts. 2 Their disclosure cannot, therefore, be said to create the same potential for compromising an ongoing investigation per KRS 61.878(1)(h) or KRS 17.150(2) as records of an investigative nature. 3 Having apparently failed to follow the Attorney General's directive in 05-ORD-103, or to challenge that portion of the decision, we find that KSP is legally obligated to disclose to Mr. Mezo forthwith any warrants or complaints filed by Troopers Babbs and Rascoe against him. KRS 61.880(5)(b). 4 Continued inaction in this regard is not an option.
Turning to the procedural issues in this appeal, we find that although Mr. Combs offers an explanation for KSP's delay in responding to Mr. Mezo's August 17 request, premised on his misdirection of that request, the nine to ten business day delay in issuing that response was not reasonable in light of Mr. Stiltner's instructions to Mr. Mezo to contact the Henderson Post. 5 It is apparently KSP's practice to process all open records requests received by its regional posts through the official custodian of records located at its Frankfort headquarters. While this office has approved such a practice, in the interest of insuring uniformity in agency responses and adherence to the Open Records Law, 6 we have also encouraged agencies to streamline their practices to insure both a timely response and timely access to nonexempt public records. Bearing in mind that KRS 61.880(1) contemplates agency response to an open records request, and records access, within three business days of receipt of the request, we find that KSP violated that provision in issuing its response to Mr. Mezo's request nine to ten business days after that request was submitted.
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 Mezo108 Court RowGreenville, KY 42345
Brenn O. Combs, Staff AttorneyKentucky State Police919 Versailles RoadFrankfort, KY 40601
Rick StiltnerOfficial Custodian of Records Commissioner's OfficeKentucky State Police919 Versailles RoadFrankfort, KY 40601
Emily M. PerkinsKentucky State Police919 Versailles RoadFrankfort, KY 40601
Footnotes
Footnotes
1 Alternately referred to as Trooper Roscoe.
2 The fact that a nonexempt public record is available from another source does not relieve an agency to which a request for the same record is directed of its duty to disclose that record.
3 As recently as January, 2005, the Attorney General reaffirmed the longstanding principle that some records found in, or appended to, an investigative file, such as a uniform offense report, or incident report, do not enjoy absolute protection under KRS 61.878(1)(h) or KRS 17.150(2) while an investigation is proceeding or a case is otherwise open. See, 5-ORD-003.
4 KRS 61.880(5)(b) provides:
If an appeal is not filed within the thirty (30) day time limit, the Attorney General's decision shall have the force and effect of law and shall be enforceable in the Circuit Court of the county where the public agency has its principal place of business or the Circuit Court of the county where the public record is maintained.
5 Although Mr. Mezo did not provide this office with a copy of Mr. Stiltner's July 22, 2005, letter advising Mr. Mezo to contact the Henderson Post, we note that Mr. Stiltner's September 1 response to the request which prompted this appeal contains similar instructions, lending credibility to Mr. Mezo's otherwise unsubstantiated assertion.
6 See, e.g., 93-ORD-134, p. 7; 04-ORD-015, note 2.