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 Lexington-Fayette Urban County Government Division of Police properly relied on KRS 61.878(1)(h) and KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(1), in denying Betty B. Ellison's September 7, 2006, request "to examine the case file of Mary Marrs Swinebroad Cawein, who died July 5, 1965, at her home in Lexington, including the report of the autopsy performed at the University of Kentucky Medical Center by pathologist Dr. Wilmier Talbert." For the reasons that follow, we find that the Division has adduced sufficient proof of harm resulting from disclosure of the requested records at this juncture, based on its decision to review the case file within 120 days of November 3, 2006, for purposes of ascertaining whether DNA testing may yield evidence to be used in a concrete prospective law enforcement action. However, in light of this office's longstanding position that a law enforcement agency cannot indefinitely characterize an investigation as open, 1 we find that continued nondisclosure of those records cannot be justified in terms of the requirements of KRS 61.878(1)(h) and KRS 17.150(2) if that review does not result in DNA testing or if the testing yields no such evidence. 2 If, after March 3, 2007, a decision has been made to forego DNA testing, or that testing has yielded no evidence, the Division must either make the disputed records "available for inspection [to Ms. Ellison] or . . . set forth some other statutorily recognizable exception to public inspection . . . ." OAG 86-80, p. 4.
As noted, in denying Ms. Ellison's request the Division relied on KRS 61.878(1)(h) and KRS 17.150(2), explaining that "[t]he investigation concerning this report is still open . . . ." On appeal, Ms. Ellison questioned the Division's position relative to the forty-one year old case, noting that the Division "made available to [her] two other case files of unsolved Lexington murders, one of which occurred four years earlier than the Cawein murder [Betty Gail Brown] and the other, more recent, seventeen years later [Jean Michel Gambet]."
In supplemental correspondence directed to this office following commencement of Ms. Ellison's appeal, LFUCG Corporate Counsel Michael R. Sanner amplified on the Division's position. He explained that the murder file of Betty Gail Brown and the suicide file of Jean Michel Gambet were closed and those files released to Ms. Ellison in their entirety. In contrast, he noted, the Cawein homicide case "is in an open status and no arrest has been made." Mr. Sanner indicated that the Division is "currently reviewing older open homicide and rape case files for possible investigations," but that the Cawein file has not yet been reviewed for investigation. Continuing he observed:
All open homicide cases in the Division of Police are subject for review and possible investigation. The decision to reinvestigate a case is made on a case-by-case basis after comprehensive review of the case. With the ever expanding fields of science and more particular[ly] in the field of DNA, it makes reinvestigation of older cases more practical.
It was the Division's position that "release of an open homicide investigation before a review and determination as to whether to reinvestigate takes place is premature and would compromise any reinvestigation based on the advancements in science and technology which were not available at the time of the crime."
In response to a series of questions propounded to the Division under authority of KRS 61.880(2)(c), 3 Lt. James A. Curless, 4 Police Crimes Section, Bureau of Investigation, described the review process for determining whether a "cold" case will be reinvestigated:
Any open, unsolved felony criminal case is subject for consideration to be reinvestigated . . . . Cases are given a higher priority to reinvestigation when testing, interviews, or some other type of investigative action would result in a high probability of solvability. Obviously, felony crimes such as murder and rape take a higher priority over other felony crimes.
In response to our question concerning procedures for formally closing a case, Lt. Curless advised:
A case is considered closed when it is cleared. It can be cleared several different ways. They are: arrest, exception or unfounded. These definitions are defined and established by the FBI in their Uniformed Crime Reporting protocol. "Cleared by Arrest (CBA)" means a suspect has been arrested for committing that particular offense. For example, Alex Arnold was arrested for the murder of Betty Gail Brown. "Cleared by Exception (CBE)" means that the perpetrator of the criminal offense has been identified, and could be arrested but for certain circumstances an arrest cannot occur. For example, if before we arrested Alex Arnold for a murder, he committed suicide. Lastly, a case can be cleared by being "unfounded" . For example, if it were determined that what was suspected as a murder was actually a suicide, then the murder case would be unfounded. If a case is "cleared by arrest" , then the Kentucky Open Records laws dictate that the case is still considered "open" until the appeals process has been exhausted. 5 Therefore, to close a case, it must be CBA, and the appeals process exhausted, CBE or Unfounded.
With reference to the existence of "other types of scientific testing regularly employed in reinvestigated cases," and likely to be employed in the Cawein case, Lt. Curless concluded:
A case may sit inactive for several years, and then information is learned that is acted upon. New technology may become available that makes particular evidence more valuable or useful than it was before. DNA has been and still is an evolving science in law enforcement. For example, we never examined DNA in 1961. In fact, the Kentucky State Police Central Forensic Laboratory processed their first DNA case in about 1990. Cases prior to this time period were not even looked at with the perspective of DNA technology. Furthermore, since 1990 the technology in DNA has been developing and changing. Because of this developing technology, the worthless piece of evidence today may be the key to solving the case tomorrow. For example, I reviewed a 1986 homicide case. I processed a straw in a soda drink that was located at the scene. A DNA profile was established from the straw. Unfortunately, the DNA profile was that of the homicide victim, and not of a suspect. However, in 1986 this straw was not viewed as being a critical piece of evidence. If it had the suspect's DNA on it, it would have changed the case. It was not until recently that this technology became available. In 1990 we typically had to have a quarter size drop of blood to obtain a DNA profile. In today's world we can obtain a DNA profile from a "touch".
The evolving technology in law enforcement is not exclusive to DNA. There are many areas that are developing. For example, fingerprints have been recovered from the skin on a body; we use alternative light sources to illuminate previously unseen evidence. New and improved scientific testing and development is on-going and evolving.
Lt. Curless did not elaborate on the likelihood of such testing in the Cawein case or otherwise provide sufficiently detailed information to support the Division's contention that disclosure of the requested records would impede enforcement efforts in that case. It is for this reason that we affirm, albeit reluctantly, the Division's denial of Ms. Ellison's request subject to the conditions set forth above and discussed in greater detail below.
In an early open records opinion, the Attorney General analyzed the purpose underlying the exemption codified at KRS 17.150(2), and its "companion statute," KRS 61.878(1)(h), 6 observing that "[i]nvestigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2, citing Privacy: Personal Data and the Law, National Association of Attorneys General (1976). There, we recognized that "[i]t is generally within the discretion of the police department to decide when a case is [active], merely inactive, 7 or is finally closed." Nevertheless, the Attorney General reminded the law enforcement agency of the language found in KRS 17.150(3), echoed in KRS 61.878(1)(h), 8 which provides that "[w]hen a demand for the inspection of the records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity. Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section." OAG 83-123, p. 2. The Attorney General concluded that this office could not, in general, "say how long the police department should consider the case inactive before declaring it closed." Id.
While it is thus true that this office generally defers to a law enforcement agency's classification of an investigation as active, inactive, or closed, fully recognizing that we have no statutory authority to order the agency to close an investigation for open records purposes , we have had occasion to question an agency's reliance on KRS 61.878(1)(h) and KRS 17.150(2), and its classification of an investigation as open, where several years have elapsed and the agency fails to provide an adequate explanation or otherwise meet its statutory burden of proof. See, e.g., OAG 86-80 (eight years); OAG 90-143 (one and one-half years); 02-ORD-20 (ten years). In so doing, we were guided by the language found in KRS 17.150(3), echoed in KRS 61.878(1)(h), and the statement of legislative policy that appears at KRS 61.871, declaring that "free and open examination of public records is in the public interest" and that the referenced exceptions to public inspection must be "strictly construed" to promote the public's right to know. Underlying these decisions was the recognition that "[s]ecret police activity without some overriding justification is repugnant to the American system of government," OAG 80-54, p. 3, and that when an investigation has been inactive for an inordinate period of time, the public's interest in seeing an offender brought to justice may have to yield to the public's right to review the conduct of the police in discharging their statutory duties.
In OAG 86-80, 9 the Attorney General determined that in light of the admonition contained in KRS 17.150(3) and KRS 61.878(1)(h), a law enforcement agency could not, without explanation, properly rely on KRS 61.878(1)(h) and KRS 17.150(2) to shield from disclosure a case that had been maintained as "an open case (active or inactive as opposed to closed) for almost eight years." OAG 86-80, p. 4. Because the agency had not met the burden of proof imposed by law relative to a denial based on these provisions, this office held that "[i]t should either make the material available for inspection or it should set forth some other statutorily recognizable exception to public inspection . . . ." Id.
OAG 86-80 is distinguishable from the appeal now before us in two significant respects. First and foremost, the Division of Police has attempted to meet its statutory burden of proof relative to the invocation of KRS 17.150(2) and KRS 61.878(1)(h) by asserting that "release of an open homicide investigation before a review or a determination as to whether to reinvestigate takes place is premature and would compromise any reinvestigation based on the advancements in science and technology which were not available at the time of the crime." The proof it presents, in this regard, stands in marked contrast to the complete absence of proof in OAG 86-80. Second, and of nearly equal import, DNA and other forms of scientific testing had not been developed in 1986 when OAG 86-80 was issued. The potential for solving ostensibly cold cases was far more remote in the days before such testing. The Attorney General might not have been so quick to resolve the dispute in OAG 86-80 against the law enforcement agency if a concrete prospective law enforcement action, based on scientific testing, existed at the time and the agency had produced sufficient proof to this effect.
In Dickerson v. Department of Justice, 992 F.2d 1426 (6th Cir. 1993), the Sixth Circuit Court of Appeals affirmed the Department of Justice's denial of a 1989 request for investigative records relating to the 1975 disappearance of Jimmy Hoffa on the basis of 5 U.S.C. § 552(b)(7)(A), the Freedom of Information Act exception for "records or information compiled for law enforcement purposes . . . to the extent that . . . production . . . could reasonably be expected to interfere with enforcement proceedings." The court found highly persuasive the view expressed by the FBI official responsible for deciding whether to continue an investigation that there was "still a reasonable prospect of a prosecution being brought," Id. at 1432, and that FBI resources should be, and were being, devoted to the investigation. 10
The Hoffa case was some fourteen years old when the requester, Dickerson, submitted his request and eighteen years old when the Sixth Circuit issued its opinion in favor of the agency. The record on appeal demonstrated that continuing FBI efforts had been devoted to the investigation. The Cawein case is forty-one years old. The record on appeal is devoid of proof of continuing efforts to solve the case or of any progress to that end. Nevertheless, the Division of Police has committed itself to reviewing the Cawein case file before March 3, 2007, for purposes of determining if DNA testing, or other scientific testing, may yield evidence to be used in a concrete prospective law enforcement action. As noted above, the Division has met its statutory burden of proof relative to invocation of KRS 61.878(1)(h) and KRS 17.150(2) in its assertion that disclosure of the file at this juncture would compromise any reinvestigation based on DNA and scientific testing.
We therefore find that if the promised review concludes with a decision that DNA testing, or other scientific testing, is unavailing and will not be conducted, the Division may no longer rely on KRS 61.878(1)(h) and KRS 17.150(2) but must release the disputed records to Ms. Ellison or assert some other statutorily recognized basis for denying access. Given the inordinate passage of time, and the corresponding likelihood that the Cawein case will never be solved, the general statement of legislative policy found at KRS 61.871, and the specific limitation on invocation of the exceptions to public inspection found at KRS 17.150(3), and echoed in KRS 61.878(1)(h), we believe that the public's right to know how the Division of Police, or its predecessor agency, executed its duty to investigate this highly publicized murder must be served, notwithstanding the fact that the case is considered "open."
Consistent with the view expressed in note 2, above, if the decision is made to conduct DNA testing, or other scientific testing, we believe it is incumbent on the Division to provide Ms. Ellison with a detailed explanation of the cause for further delay and to state the earliest date certain when the testing will be concluded. If that testing yields no evidence to be used in a concrete prospective law enforcement action, the Division must disclose the disputed records on that date or advance an alternative statutory basis for denial. If the testing yields evidence to be used in a concrete prospective law enforcement action, the Division may continue to withhold the disputed records on the basis of KRS 61.878(1)(h) and KRS 17.150(2). After forty-one years, these exemptions should no longer be used by the Division "to delay or impede the exercise of rights granted by" the Open Records Act.
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 See, e.g., OAG 86-80, discussed below.
2 In the event the decision is made to conduct DNA testing, we recognize that additional time may be required for that testing. Given our holding in this appeal, and the requirements found at KRS 61.872(5), we believe that it will then be incumbent on the Division to provide Ms. Ellison with a detailed explanation of the cause for further delay, in terms of the testing contemplated, and to state the earliest date certain when the testing will be concluded. If the testing yields no evidence, the records must be made available for inspection on that date, or an alternative exception to the Open Records Act invoked. If the tests yield evidence to be used in a concrete prospective law enforcement action, the Division may continue to withhold the records on the basis of KRS 61.878(1)(h) and KRS 17.150(2) until that action is concluded.
3 KRS 61.880(2)(c) provides:
On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
(Emphasis added.)
4 Lt. Curless is the Cold Case Grant Program Director and is responsible for determining whether unsolved cases will be reinvestigated. It was Lt. Curless who committed to review the Cawein case within 120 days.
5 See discussion below.
6 KRS 17.150(2) provides in relevant part:
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.
KRS 61.878(1)(h) provides, in relevant part:
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.
7 A case is deemed "inactive" when "no suspect has been determined and active investigation has ceased because the investigator can find no other trails to follow . . . ." OAG 83-123, p. 2.
8 The final sentence of KRS 61.878(1)(h) thus provides that "[t]he 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."
9 This appeal arose from the denial of a request for records relating to a similarly sensational case in which there was a keen public interest, the so-called "Bluegrass Conspiracy," and, in particular, the disappearance of Melanie Flynn.
10 KRS 61.878(1)(h) may be invoked only if disclosure "would" harm the agency, a more stringent standard than the "could" standard appearing in 5 U.S.C. § 552(b)(7)(A).