Request By:
Rachel Adams
The Daily News
813 College Street
Bowling Green, KY 42102Kim Clayton
Sr. Office Associate
Bowling Green Police Department
911 Kentucky Street
Bowling Green, KY 42101H. Eugene Harmon
City Attorney
328 E. 10th Avenue
P.O. Box 430
Bowling Green, KY 42102-0430
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 Bowling Green Police Department violated the Open Records Act in denying Daily News reporter, Rachel Adams, October 6, 2005, request to inspect the "incident report regarding [an] 8-week-old infant with 'suspicious injuries' . . . [that] took place Sunday, October 2." For the reasons that follow, we find that the Department properly relied on KRS 61.878(1)(h) in denying Ms. Adams access to those portions of the incident report containing "investigative details . . . that, if released at this time, could potentially affect any information a witness might not otherwise know . . . [thereby] jeopardize[ing] the credibility of that witness," but must disclose those portions of the report that do not reveal investigative details or details already disclosed.
In its October 6 response, the Department notified Ms. Adams that her open records request was "denied at this time due [to] its ongoing investigation." In attached correspondence, the Department invoked KRS 61.878(1)(h). Shortly thereafter, Ms. Adams initiated this appeal explaining that "[t]he police responded to the hospital on [October 2] and investigated the incident," and that "[a]n officer provided [her with] some details of the case, but would not let [her] see the incident report." Continuing, she observed:
As the police reporter for the Daily News , I am permitted to see incident reports every morning for publication in our police blotter, including cases that are considered ongoing. I am also permitted to see reports involving juveniles, as long as their names have been obscured with black marker. As it has been more than two weeks since the incident occurred, and as the incident involves a juvenile whose name I am not permitted to see anyway, I see no reason for the Bowling Green Police Department to continue withholding this report.
It was Ms. Adams position that "the Department's desire to keep this information private [does not] outweigh the public's right to know such an incident occurred."
In supplemental correspondence directed to this office following commencement of Ms. Adams' appeal, Bowling Green City Attorney H. Eugene Harmon amplified on the Department's argument. He stated:
In discussions with both the City Police Department and with the Commonwealth Attorney, I was advised that this matter is still under investigation. I was also advised by both agencies that there are too many investigative details in the incident report that, if released at this time, could potentially affect any information a witness might not otherwise know. The concern is that if these details are disclosed and a witness later comes forward to corroborate the details of the incident, an argument could be made that the witness learned of the details from the release of the report and not from actual first-hand knowledge. This could jeopardize the credibility of that witness. Therefore, the Police Department and the Commonwealth Attorney believe that premature disclosure at this time would harm their ability to adequately investigate this matter.
In addition to reasserting the Department's reliance on KRS 61.87891)(h), Mr. Harmon invoked KRS 61.878(1)(a), noting that "the records request seeks information about suspicious injuries to an eight-week-old child," and that the Attorney General "has in the past authorized nondisclosure of documents related to the identity of juvenile victims of crime depending on the nature and circumstances of the crime and the impact on the juvenile of further disclosure. "
Unable to resolve the issue on appeal on the facts before us, on November 10, 2005, this office requested a copy of the disputed report for in camera inspection pursuant to KRS 61.880(2). Our review confirms, in large measure, the position taken by the Bowling Green Police Department. However, portions of the report do not contain investigative details that have not already been disclosed, and, consistent with KRS 61.878(4), requiring public agencies to separate excepted material and make nonexcepted material available, where both are commingled in a single document, those portions of the report must be disclosed.
This office recently reaffirmed the longstanding proposition that law enforcement agencies cannot adopt a policy of blanket nondisclosure relative to incident reports. 05-ORD-003 (Winchester Police Department's policy of blanket nondisclosure of second page of incident reports violated Open Records Act. ) This decision echoes a decision of the Kentucky Court of Appeals issued in October 2003, and declaring that "police incident reports are matters of public interest and are public records. 93-ORD-42, citing OAG 76-443. As a result, the public should be allowed to scrutinize the police to ensure they are complying with their statutory duties." Cape Publications v. City of Louisville, Ky. App., 147 S.W.3d 731 (2003). This office's decision was premised on the notion that:
Secret police activity without some overriding justification is repugnant to the American system of government. Consequently, when a citizen reports a crime to the police he may generally expect that the news media will learn of the report.
[A law enforcement agency] is the servant of the people and if a citizen wants the Services of [that agency] to investigate a crime, he cannot expect that the matter will be kept secret.
OAG 80-144, pp. 1, 2. The Bowling Green Police Department does not, in general, question this well-established line of authority, but asserts that disclosure of the particular report at issue in this appeal, at this juncture, will impede its investigation, and any potential enforcement action, by compromising the credibility of witnesses through premature disclosure of details of the incident.
The position finds support in KRS 61.878(1)(h) and in prior decisions of this office. That exception authorizes public agencies to withhold:
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.
In construing this provision, 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. 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; 97-ORD-93; 99-ORD-162; 00-ORD-196; 02-ORD-179; 05-ORD-003.
Where, as here, the law enforcement agency articulates the basis for denial in terms of the requirements of KRS 61.878(1)(h), the Attorney General has recognized that portions of an incident report can be withheld. For example, in OAG 77-102 we stated that "[i]f a police department feels it necessary to withhold certain items from public inspection it may do so under KRS 17.150(2) 1 [and/or KRS 61.878(1)(h)] but the burden is upon the custodian to justify the refusal of inspection with specificity." See also, 05-ORD-003, p. 8 (affirming Winchester Police Department's redaction of those portions of incident report that were categorized under the headings: "synopsis," " Modus Operandi ," "Accused," "Suspects," "Witnesses," "Evidence and How Marked," "Evidence Disposition," and "Attachments" "if disclosure of those entries would . . . compromise the investigation or prosecution of a case . . ."). Under this line of reasoning, it is incumbent on the law enforcement agency to "separate the excepted and make the nonexcepted material available for examination," KRS 61.878(4), and to provide particularized justification for the partial nondisclosure.
The Bowling Green Police Department has described particular harm to its investigation, and any subsequent prosecution, that would result from premature disclosure of the disputed incident report. As noted above, the Department expresses concern that the report contains "too many investigative details . . . [and] that if these details are disclosed and a witness later comes forward to corroborate the details of the incident, . . . [the argument will be made] that the witness learned of the details from the release of the report and not from actual firsthand knowledge." While we find that this description of harm satisfies the requirements of KRS 61.878(1)(h), as well as KRS 17.150(2), we note that certain details of the incident have already bee made public, including the date of the incident, the fact that the victim was eight weeks old, the fact that the victim had "suspicious injuries," and the fact that the police "responded to the hospital." With respect to those portions of the incident report reflecting already disclosed details, we find the Department's position untenable. Having reviewed the report, we affirm the Department's denial of:
Page 1 of 5 - complainant's name and business telephone number
-dates and times of incident
-victim's name, home telephone number, address, sex, race, date of birth, ethnicity, and injury type;
Page 2 of 5 - evidence taken, tools used;
Page 3 of 5 - witness's name, race, sex, date of birth, social security number, address, home telephone number, business address, and what the witness saw/heard;
Page 4 of 5 - officers' investigative notes (only the first and last lines on the page, identifying the offense and the officer, must be disclosed);
Page 5 of 5 - officers' investigative notes (only the first and last lines of the page, identifying the offense and the officer, must be disclosed).
The remainder of the incident report may not properly be withheld insofar as it contains only already disclosed details.
We concur with the Department in its view that KRS 61.878(1)(a) provides additional support for the redaction of the victim's name and other identifying information. Although this office has "stop[ped] short of approving a policy of blanket nondisclosure relative to records disclosing the identities of juvenile victims of crime, " 96-ORD-115, p. 4., we have recognized that "there is . . . a public policy which militates in favor of protecting the privacy of juvenile victims," and that "the weight to be assigned the [juvenile's] privacy interest corresponds to the nature and circumstances of the crime perpetrated against the juvenile. " Id. (Lexington Fayette Urban County Government properly withheld name of juvenile victim of drive-by shooting because "the harm to personal privacy resulting from disclosure outweigh[ed] the benefit to the public"); compare 98-ORD-123 (Lexington Fayette Urban County Government improperly relied on KRS 61.878(1)(a) to withhold the name of a juvenile who accidentally shot himself with a service revolver belonging to his police officer mother).
Our analysis in each of these appeals was based on a number of factors, including the seriousness of the crime, the circumstances under which it was committed, and the adverse impact on the juvenile of further disclosure. Assessing each of these factors in the context of the instant appeal, we find that disclosure of the juvenile victim's identity, and any identifying information, would constitute a clearly unwarranted invasion of personal privacy. We are precluded from further comment by virtue of the fact that the investigation into this matter is proceeding and the details which support our conclusion are those for which the Department asserts KRS 61.878(1)(h) protection. We therefore affirm the Bowling Green Police Department's redaction of the juvenile victim's name and other identifying information on the basis of KRS 61.878(1)(a).
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 17.150(2) thus provides:
(2) Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made. However, portions of the records may be withheld from inspection if the inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in the records to be used in a prospective law enforcement action.