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 Central City Dispatch violated the Open Records Act in denying Messenger-Inquirer Editor Dan Heckel's May 14, 2007, request for all records and reports generated by that agency relating to the shooting of Sara Watkins, including, but not limited to, dispatch reports, 911 calls, uniform offense reports, and arrest citations. For the reasons that follow, we find that Central City Dispatch violated KRS 61.880(1), and failed to meet its statutorily assigned burden of proof, in denying Mr. Heckel's request.
On May 21, 2007, Central City Dispatch responded to Mr. Heckel's request through Muhlenberg County Attorney Darris Russell. 1 That response consisted of a fax cover sheet, with no accompanying explanation, a copy of the Court of Appeal's opinion in
Bowling v. Brandenburg, 37 S.W.3d 785 (Ky. App. 2000), and a Shepard's summary of the cited opinion. A portion of the Bowling opinion, quoting the language of KRS 61.878(1)(h), had been highlighted. The response was otherwise devoid of explanatory material.
Shortly thereafter, Mr. Heckel initiated this appeal questioning the adequacy of the agency's response and noting that he received no "statement of the specific exception authorizing the withholding of the record [or] a brief explanation of how the exception applies to the records withheld, as required by KRS 61.880(1)." It was his position that "[t]he inclusion of a prior open records [court opinion], without an explanation of how it applies to the records at issue, is insufficient in this regard." We agree.
KRS 61.880(1) establishes guidelines for agency response to an open records request. That statute provides, in relevant part:
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 addition, KRS 61.880(2)(c) expressly provides:
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.) Read together, these provisions mandate an agency response that contains "particular and detailed information" and not a "limited and perfunctory response . . . ."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996).
In 93-ORD-125, this office expressly held that "forwarding a copy of a very brief and cursory internal memo to [the requester] does not satisfy the public agency's procedural obligations under KRS 61.880(1)." 93-ORD-25, p. 3. Specifically, we noted, the "response":
failed to directly notify "the person making the request" . . . of [the agency's] decision . . ., [did] not contain an express statement to th[e] effect [that the request is denied] . . ., [and was not] clear[ly] issued by the official custodian of the record or under his or her authority.
Id. These same deficiencies exist in Central City Dispatch's "response" to The Messenger-Inquirer's request. In addition, the agency offers no explanation of how the vaguely referenced exemption applies to the records withheld.
Because the Central City Dispatch is statutorily assigned the burden of proof, it must not only cite the relevant exemption or exemptions authorizing nondisclosure, but must explain the application of the exemption or exemptions to the records withheld. 95-ORD-3 (holding that the "mere invocation of an exemption, without an adequate explanation of how the exemption applies to the record withheld, does not satisfy the burden of proof, imposed on the agency under KRS 61.880(2)(c)"). Moreover, "the basis for denial must . . . be articulated in terms of the requirement of the statute." Id., citing OAG 89-20. This is particularly true when the agency relies upon KRS 61.878(1)(h), expressly providing that that exemption "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 ." We urge Central City Dispatch to review KRS 61.880(1) and to remember, as we first noted in 93-ORD-125, 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." Id.
Consistent with the principle that "free and open examination of public records is in the public interest," KRS 61.878(1)(h), like each of the thirteen other exemptions to public inspection, must be "strictly construed" to afford the broadest possible access to agency records. KRS 61.871. KRS 61.878(1)(h) provides, in part, that the following agency records may be excluded from public inspection:
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 KRS 61.878(1)(h), 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.
Implementing this legislative mandate, in
University of Kentucky v. Courier Journal & Louisville Times Co., 830 S.W.2d 373 (Ky. 1992), the Kentucky Supreme Court rejected a claim, advanced by the University, that records it compiled in the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h). The Court reasoned:
This exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself, conceded that the NCAA, a private regulatory entity, is the only "agency" involved in "administrative adjudication. " Therefore, KRS 61.878(1)[(h)] would not apply.
University of Kentucky, at 377. Having failed to satisfy one part of the three part test found in KRS 61.878(1)(h), the Court rejected the University's claim.
Applying the same analysis, the Attorney General has rejected public agency reliance on KRS 61.878(1)(h) in a series of decisions. See, e.g., 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, Kentucky Board of Medical Licensure failed to justify denial of records request with proof of harm by premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in 911 tape would harm the city was insufficient to satisfy statutory burden of proof) ; 96-ORD-56 (Kentucky Labor Cabinet failed to establish that disclosure of records in occupational safety and health investigative file would harm the agency, and therefore did not satisfy the three part test); 96-ORD-155 (Department of Insurance was not engaged in investigating statutory or regulatory violations and would not be harmed by disclosure of rate filings, and improperly relied on KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on law enforcement exception to withhold policy and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); 00-ORD-196 (Jefferson County Corrections Department failed to demonstrate any harm to the Department in disclosing videotape of incident that occurred in the Hall of Justice); 02-ORD-179 (record on appeal was devoid of proof that Oldham County Animal Shelter compiled records relating to care of rescued animal in the process of detecting and investigating statutory or regulatory violation or that disclosure of the records would harm the agency); see also, 03-ORD-015; 04-ORD-104; 05-ORD-178. The question of the propriety of agency invocation of KRS 61.878(1)(h) has thus arisen in various contexts, but the analysis remains the same. Given the requirement that the exemptions be strictly construed, codified at KRS 61.871, and the referenced prohibition on the use of KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884" contained in that exception, a public agency may only rely on KRS 61.878(1)(h) if it can clearly demonstrate that it satisfies each part of the three part test.
The record before us is devoid of specific proof that the requested records qualify for exclusion under KRS 61.878(1)(h). Central City Dispatch was afforded two opportunities to satisfy its statutory burden through the presentation of proof supporting its claim of exemption: first, in responding to The Messenger-Inquirer's original open records request, and second, in responding to this office's notification of receipt of Mr. Heckel's open records appeal. Assuming, arguendo, that the disputed records qualify as records of a law enforcement agency compiled in the process of detecting or investigating statutory or regulatory violations, we nevertheless find that in the absence of proof that premature disclosure of the records would harm Central City Dispatch, its invocation of KRS 61.878(1)(h) fails. While Central City Dispatch might have successfully built a case for nondisclosure of the requested records under KRS 61.878(1)(h), it has not done so in the instant appeal. We therefore have no alternative but to conclude that Central City Dispatch violated the Open Records Act in denying The Messenger-Inquirer's 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.
Dan Heckel, Editor
Christy Jenkins, Supervisor
Darris RussellMuhlenberg County AttorneyP.O. Box 302Greenville, KY 42345-0302
Footnotes
Footnotes
1 Although the date of Mr. Russell's response exceeds the three day statutory deadline, Mr. Heckel does not raise the issue of the timeliness of that response. The apparent delay in issuance of the response may have been occasioned by delays in the mail.