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 City of Ashland violated the Open Records Act in denying Veraletta Look's request for a copy "of the Complaint/statement/recording/etc, or any documentation, filed by Jessica Thomas during the month of July/August, 2005 against any and all Ashland police officers, including but not limited to, David Bocook, Jeff Christian, Jason Deerfield and Rodney Bowling."
By letter dated May 8, 2006, Richard W. Martin, Corporation Counsel, City of Ashland, denied the request, stating:
In response to your inquiry dated April 27, 2006, mailed May 1, 2006 and received by the City on May 3, 2006, be advised that the information that you have requested is a part of an ongoing administrative investigation in the Ashland Police Department compiled in the process of investigating statutory or regulatory violations. The premature release of the requested information could compromise a pending criminal prosecution involving Jessica Thomas and adversely affect potential administrative adjudication. The requested records additionally contain information of a personal nature where the public disclosure would constitute a clearly unwarranted invasion of privacy. For these reasons, the City declines to provide you with the information requested relying upon provisions of KRS 61.878(1)(h) & (a) and KRS 17.150(2).
Shortly thereafter, Ms. Look initiated the instant appeal, arguing in part that the City must comply with her request for a copy of Ms. Thomas' statement "as the investigation into Officers Bocook, Christian, Deerfield and Bowling had been closed since August 2005."
After receipt of notification of the appeal, Mr. Martin, on behalf of the City, provided this office with a response to the issues raised in the appeal. In his response, he advised, in relevant part:
In response, be advised that on July 20, 2005, officers of the Ashland Police Department ("APD") arrested Jessica Thomas on possession of cocaine charges. In the course of an interview with the arresting officer, Ms. Thomas made allegations about engaging in sexual activities with a number of police officers while on duty. As a result an administrative investigation was opened and Ms. Thomas gave a second statement to the officer assigned to the investigation. 1 A transcript was made of that statement which was read by Ms. Thomas and subscribed and sworn to.
?
No charges have been brought relating directly to the Thomas statement as of this date, but the file remains open. Other individuals including APD officers not charged and third parties were named by Ms. Thomas as having knowledge of the alleged misconduct. Other information has been sought relating to the allegations. A number of individuals have contacted various news media, with additional allegations. The investigation is ongoing and depending on the federal court's ruling in this litigation 2 and other developments, charges may yet be filed.
It is the decision of this office that the City properly relied on KRS 61.878(1)(h). That exception authorizes nondisclosure of:
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 order to successfully raise this exception, a public agency must satisfy a three-part test. 05-ORD-259. 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 or an administrative adjudication.
Clearly, the Ashland Police Department is a law enforcement agency. Thus, it satisfies the first part of the three part test. Moreover, the City establishes that the disputed record was compiled in the process of investigating statutory violations and therefore satisfies the second part of the test. "This language," the Attorney General has observed, "has generally been interpreted as being applicable to such records as notes, witness statements, and documentary evidence gathered in the course of an investigation into a specific incident and incidents involving statutory or regulatory violations . . . [and] contemplates the existence of an actual, ongoing investigation which is concluded by enforcement action or the decision to take no action." 97-ORD-129, p. 4. Finally, the City demonstrates that premature disclosure of Ms. Thomas' statement would harm the APD's administrative investigation by revealing the identity of APD officers not charged and third parties not otherwise known and/or premature release of information to be used in the APD's ongoing investigation of alleged police misconduct and that charges may yet be filed. The City also indicates that other information has been sought relating to the allegations and a number of individuals have contacted various news media, with additional allegations. Accordingly, having articulated the basis for denial in terms of the requirements of KRS 61.878(1)(h), we affirm the City's denial of Ms. Look's request for a copy of Ms. Thomas' statement, as the administrative investigation on Ms. Thomas' allegations of police misconduct is still open and active and no final action has been taken on the complaint. 3
Because the foregoing is dispositive of this appeal, we need not address other bases relied upon by the City in support of its denial of the request.
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.
Veraletta Look16 Township Rd. 1174Proctorville, OH 45669
Deborah MusserCity Clerk/Records CustodianP. O. Box 1839Ashland, KY 41105
Richard W. MartinCorporate CounselCity of AshlandP. O. Box 1839Ashland, KY 41105-1839
Footnotes
Footnotes
1 Mr. Martin advised that each of nine officers was ordered to submit to an interrogation that could include a polygraph examination. Each officer refused and the Chief of Police opened a second administrative file and filed charges of insubordination. He further advised that four of the officers resigned with the insubordination charges pending; four officers admitted to actions that constituted misconduct while on duty and were disciplined; and one officer had a hearing before the Ashland Board of City Commissioners and was terminated.
2 Mr. Martin indicated that three of the officers that resigned and the officer that was terminated had filed suit against the City and various city officials in U. S. District Court seeking reinstatement with full back pay; compensatory and punitive damages. By Order dated February 21, 2006, discovery was suspended pending ruling on a motion to dismiss by the defendants.
3 Although not cited by the City, KRS 61.878(1)(i) and (j) might also authorize nondisclosure of the document while the investigation and potential prosecution is ongoing. See 06-ORD-043. (Complaint or charging document that spawns an investigation may be withheld until investigation is concluded and final action taken on the complaint, including decision to take no action.)