Opinion
Opinion By: Gregory D. Stumbo, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Shively Police Department (SPD) violated the Open Records Act by denying Terrance E. Miles' request to inspect any and all "Radio Transmissions" that transpired between all SPD Police Cars, Cruisers and/or Unmarked Units that were involved in sequence number: P: 2005: 2213, (Incidence Sequence Number: 27: 2: 4), created 02/27/2005 at 07:46:34 (See attachment). Dispatched by Ruth Williams (7086), position two (2) and "a copy of report No. 2005353." For the reasons that follow, we conclude that the SPD failed to meet its burden in establishing that the requested records were exempt under KRS 61.878(1)(h), and thus, improperly denied access to the records.
By letter dated November 4, 2005, Colonel Ralph Miller, Jr., Chief of Police, SPD, responded to Mr. Miles' request, advising:
I am in receipt of your request for Open Records relating to KRS 61.870 and 61.884. These records are exempt under the above mentioned statutes because of the ongoing investigation.
Any further correspondence or request need to be made through your legal counsel to the Commonwealth's Attorney's office.
In his letter of appeal, Mr. Miles asked this office to review his request and the SPD's response to determine whether or not the agency improperly denied his request.
After receipt of notification of the appeal and a copy of the letter of appeal, Walter Cato, City of Shively Attorney, in a supplemental response submitted to this office, advised:
The open records request for radio transmissions and incident report No. 2005353 was denied by Chief Miller as being exempt: the statutory authority for denial of the requested records was KRS 61.878(1)(h). The factual basis is that the file continues to be under investigation and an active prosecution by the Jefferson County Commonwealth Attorney is being pursued against the requesting party. . . .
We are asked to determine whether the SPD's denial of Mr. Miles' request violated the Open Records Act. For the reasons that follow, we conclude that the SPD failed to meet its burden in establishing that the requested records were exempt under KRS 61.878(1)(h), and thus, improperly denied access to the records. The agency failed to establish that (1) the requested radio transmissions and incident report were compiled as an integral part of a specific investigation and (2) failed to establish that premature disclosure of these records would "harm" the ongoing law enforcement action.
This office has previously held that police radio transmission tapes and dispatch logs are, in general, open for public inspection. 98-ORD-104; 94-ORD-133; OAG 89-20; OAG 89-11. Reviewing the line of opinions supporting this holding, in 98-ORD-104 we observed:
In OAG 89-11, this office held that the Jefferson County Police Department improperly denied access to a tape recording of police radio transmissions surrounding a criminal event. In reaching such result, we stated:
Moreover, in OAG 89-11, we noted that even if there is reasonable disagreement as to whether the tape was compiled in the process of detecting and investigating statutory violations, there must still be a showing that the agency would be harmed by "premature release of information to be used in a prospective law enforcement action or administrative adjudication. " KRS 61.878(1)(h). In the instant appeal, no showing has been made of any harm which might occur if inspection of the radio logs and tapes is allowed.
In OAG 89-20, we held the City of Winchester improperly denied a request to inspect radio transmission logs generated by the Winchester Police Department, on the basis of what is now codified as KRS 61.878(1)(h). In so holding, we explained the nature of the logs as follows:
98-ORD-104, pp. 4, 5 (emphasis added). We held in 98-ORD-104 that the Kentucky State Police improperly withheld disclosure of the requested police radio logs and tapes. Acknowledging that the records might be included in a police investigative file, we concluded that they were made collaterally to, and not as an integral part of, an investigation and that there was no showing of harm under KRS 61.878(1)(h).
In order to successfully raise KRS 61.878(1)(h) as a basis for nondisclosure, 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.
Obviously the SPD is a law enforcement agency. However, it fails to establish that the requested radio transmissions and incident report were compiled as an integral part of a specific investigation and further fails to articulate how release of either record would compromise the ongoing investigation/litigation. The SPD's responses do not describe the harm that would result from premature release of the records at issue. See, for example, 97-ORD-52 (Public Corruption Unit of Attorney General's Office properly denied open records request for records compiled in active investigation on the grounds that premature disclosure would divulge information to subjects who had not yet been interviewed, and thus have a direct bearing on the outcome of the case) and 02-ORD-4, (Department for Medicaid Services properly denied request for records pertaining to an investigation of a doctor pursuant to KRS 61.878(1)(h), where investigation had been turned over to Attorney General, was ongoing, and premature disclosure of requested records would compromise its investigation.)
Moreover, this office has previously held that a "bare claim" that premature release of an investigative record, without a description of the harm that would occur, was insufficient to qualify for exemption under KRS 61.878(1)(h). 01-ORD-122; OAG 89-11. Thus, we conclude that the agency's reliance on KRS 61.878(1)(h), as a basis for withholding access to the requested records, is misplaced and were improperly withheld from disclosure under that exemption.
In addition, this office has held that law enforcement agencies cannot adopt a policy of blanket nondisclosure relative to an incident report. It must articulate the harm that would result in premature disclosure of a particular portion of the report as, required by KRS 61.878(1)(h). In 05-ORD-259, p. 5., we stated:
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.
In 05-ORD-259, the Bowling Green Police Department expressed concern that the incident report in question contained too many investigative details and that if these details were disclosed and a witness later came forward to corroborate the details of the incident, the argument would be made that the witness learned of the details from the release of the report and not from actual firsthand knowledge. We found that this description of harm to its investigation, and any subsequent prosecution, that might result from premature disclosure of the disputed incident report satisfied the requirements of KRS 61.878(1)(h), as well as KRS 17.150(2).
Unless the SPD can establish that the requested radio transmissions and incident report were compiled as an integral part of a specific investigation and can articulate how disclosure of the requested records, or portions thereof, would harm its investigation or the Jefferson Commonwealth Attorney's law enforcement action, it must make the records available for Mr. Miles' inspection.
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.