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 Laurel County Sheriff's Department violated the Kentucky Open Records Act in denying the request submitted by Virginia Braden on behalf of the family of Philip Carson for a copy of "the complete case file" concerning the investigation of his death "that occurred on December 31, 2005," in Laurel County, Kentucky, "any and all records associated with the investigation including the records and/or results of any physical investigations done of the scene, the decedent, and/or witnesses," and "results of any laboratory tests, photographs of the scene, and witness statements, etc." Although the LCSD initially failed to comply with KRS 61.880(1) , the LCSD properly relied upon KRS 61.878(1)(h) in denying access, albeit implicitly, because the investigation is ongoing and premature disclosure would apparently be harmful to said investigation.
By letter dated August 4, 2006, Ms. Braden directed her request to the LCSD, "Care of Jennifer," enclosing a money order in the amount of $ 4.00 as payment for copies along with "a self-addressed stamped envelope." On August 11, 2006, "Jennifer" provided Ms. Braden with a copy of "the case report [entitled "KYIBRS Report"]," advising her that "is all that can be released on a case report without a court order." Arguing that she has "not received anything close to the exact records" requested "even though a very specific request was made," Ms. Braden subsequently initiated this appeal. In addition, Ms. Braden clarifies that she requested a copy of the "case file" rather than a copy of the "case report" as indicated by "Jennifer." While the report does contain sufficient information for Ms. Braden to determine it "refers to the correct incident," it "is a far cry from the records" to which she requested access. In conclusion, Ms. Braden notes that she spoke with Jennifer and Detective Jimmy Phelps, both of whom informed her that she had been provided with everything to which she is entitled absent a court order "directing them otherwise"; Detective Phelps further indicated "that he has never dealt with the Open Records Act and that the way it has always been done is to get a court order." 1
Upon receiving notification of Ms. Braden's appeal from this office, Elmer Cunnagin, Jr., Laurel County Attorney, responded on behalf of the LCSD. As observed by Mr. Cunnagin:
Detective Phelps advised me that the criminal investigation into the death of Philip Carson, which occurred on December 31, 2005, is being conducted by [Sergeant] Tommy Johnston of the Laurel County Sheriff's Office.
Detective Phelps also advised that the criminal investigation is still open and awaiting laboratory results on a request for comparison on the gun shell casings and the bullet.
It is the opinion of the Laurel County Sheriff's Office that the release of the records before the case investigation is concluded and a decision is made whether or not to take enforcement action could be harmful to the investigation.
Accordingly, Mr. Cunnagin advised the LCSD that, in his opinion, "this constitutes an exemption to the statutory requirement for release of records pursuant to the open records provisions of Kentucky law." In so arguing, Mr. Cunnagin implicitly relies upon KRS 61.878(1)(h), pursuant to which the following records are excluded from application of the Act:
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.
With the exception of procedural irregularities, this office finds no error in the position of the LCSD.
As a public agency, the LCSD is obligated to comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records generally speaking. 2 More specifically, KRS 61.880(1) dictates the procedure that a public agency must follow 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 or under his authority, and it shall constitute final agency action. (Emphasis added).
In construing the mandatory language of this provision, the Kentucky Court of Appeals observed:
The language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance.
Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996); 04-ORD-208; 04-ORD-163; 04-ORD-106.
Noticeably absent from the LCSD's initial response is any reference to the applicable statutory exception(s) and the requisite brief explanation of how the exception(s) applies. A public agency such as the LCSD must cite the applicable exception and provide a brief explanation of how that exception applies to the records, or portions thereof, withheld per KRS 61.880(1) in order to satisfy its burden of proof. 04-ORD-106, p. 6; 04-ORD-080; 01-ORD-232; 99-ORD-155. As consistently recognized by the Attorney General:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106; 03-ORD-213. In the same vein, this office has also observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2. In short, neither the initial response nor the supplemental response of the LCSD contains the specificity envisioned by KRS 61.880(1). From a procedural standpoint, the LCSD violated the Open Records Act in failing to comply with the mandatory terms of this provision. In responding to future requests, the LCSD should be guided by the longstanding principle that the procedural requirements of the Open Records 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; 04-ORD-181; 04-ORD-163; 04-ORD-080; 02-ORD-187. 3
Turning to the substantive issue presented, this office finds that governing precedent weighs in favor of the LCSD. In our view, 04-ORD-041 and 04-ORD-114 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. By invoking KRS 61.878(1)(h), expressly indicating that any records which are responsive to Ms. Braden's request relate to an "open" investigation, and demonstrating that premature release of the records would harm the investigation, the LCSD has satisfied the burden of proof imposed upon public agencies by KRS 61.880(2)(c).
Both KRS 61.878(1)(h) and KRS 17.150(2) "recognize that law enforcement agencies may withhold investigative records until prosecution is completed or a decision not to prosecute has been made." 04-ORD-114, p. 9. See 99-ORD-93. Although a public agency cannot indefinitely postpone access to investigative records by characterizing an investigation as "open," as evidenced by prior decision of this office dating back to 1976 (affirmed by the Kentucky
Supreme Court in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992)), the Attorney General 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." 04-ORD-114, pp. 9-10 (citations omitted). Because the instant appeal presents no reason to depart from governing precedent, this office affirms the denial by the LCSD of Ms. Braden's request on the basis of KRS 61.878(1)(h).
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 It is unclear from the record why Ms. Braden was referred to Detective Phelps since he is apparently not the records custodian for the LCSD nor is he the detective assigned to this case.To clarify, a public agency "cannot ignore, delay, or postpone its statutory requirements under the Open Records Act. " 02-ORD-165, p. 3. In the event the official records custodian is absent, "an individual should [be] appointed as acting custodian to response to open records requests in a timely fashion." 94-ORD-86, p. 4; 02-ORD-165, p. 3. Neither the press of business nor the absence of the official custodian justifies a delay in providing access to public records. Id. "It is incumbent on [the LCSD], as it is on any public agency, to make proper provision for the uninterrupted processing of open records requests." 01-ORD-140, p. 6. Any other interpretation of the Act would be "clearly inconsistent with the natural and harmonious reading of KRS 61.870 considering the overall purpose of the [Act]," Frankfort Publishing Co., Inc. v. Kentucky State University Foundation, Inc., Ky., 834 S.W.2d 681, 682 (1992), and the recognition that "the value of information is partly a function of time." Fiduccia v. U.S. Department of Justice, 185 F.3d 1035, 1041 (9th Cir. 1999).
2 See 02-ORD-132, p. 7, citing Zink v. Commonwealth, Ky. App., 902 S.W.2d 825, 828 (1994).
3 Although the LCSD belatedly invoked KRS 61.878(1)(h), the LCSD should bear in mind that a response pursuant to 40 KAR 1:030 Section 2 should be viewed 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. Therefore, this office considers supplemental responses which correct misstatements appearing in, or misunderstandings resulting from, the complainant's letter of appeal, or, which offer additional support for the agency's original denial. Id. See also 04-ORD-208.