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 McCracken County Sheriff's Department violated the Kentucky Open Records Act in denying the request of Michael Keeling "to be notified of the amount that it is going to cost me for all records pertaining to the investigation performed by the McCracken Co. Sheriff's [Department] in case No. 04-CR-341." In failing to issue a written response within three business days, citing the applicable statutory exception and briefly explaining how it applies, the Department violated KRS 61.880(1); however, the Department properly relied upon KRS 61.878(1)(h) and KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Mr. Keeling's request insofar as he is precluded from gaining access under Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992) and Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005), "so long as the possibility of further judicial proceedings in [the] case remains a significant prospect."
On a standard form directed to the Department on July 30, 2007, Mr. Keeling submitted the aforementioned request. In a letter dated August 29, 2007, Raymond D. McGee, Assistant Commonwealth's Attorney, advised Mr. Keeling that his request had been forwarded to his office by the Department; however, Mr. McGee asserted that his office is "exempt from this provision of the Open Records Act, and will not provide you with an estimated cost nor [sic] the records." By letter dated September 3, 2007, Mr. Keeling initiated this appeal from the denial of his request, correctly arguing that the Department violated KRS 61.880(1) both in failing to issue a timely response and in failing to include a statement of the specific exception authorizing the withholding of the record and briefly explain how it applies.
Upon receiving notification of Mr. Keeling's appeal from this office, Mr. McGee responded on behalf of the Department, noting that Mr. Keeling "did not specifically request any records, but merely 'the amount it was going to cost' for records." 1 According to Mr. McGee, his position that his office is "exempt from the Open Records Act is correct. Pursuant to KRS 17.150(2) and KRS 61.878(1)(h) , records of the Commonwealth's Attorney's Office pertaining to criminal investigations are specifically exempted from accessibility under the Open Records Act. " 2 In addition, the Department "is not required to produce the records of the investigation it performed on case No. 04-CR-341 pursuant to KRS 61.878(1)(h) and KRS 17.150(2) as interpreted in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992)." Noting that Mr. Keeling "clearly states in his appeal that he needs the investigative reports 'to defend himself in post-conviction proceedings' and for 'post-conviction motions[,]'" Mr. McGee correctly observes that the Department "is not required to produce the records 'so long as the possibility of further judicial proceedings in this case remains a significant prospect. Skaggs at 391.'" As further explained by Mr. McGee:
The appellant was sentenced to 20 years in prison on McCracken Circuit Case No. 04-CR-341. He appealed his case to the Kentucky Supreme Court. An opinion by the Kentucky Supreme Court was issued and became final on July 12, 2007. The appellant's request pursuant to the Open Records Act was dated July 30, 2007. This clearly indicates that he is attempting to receive discovery for a post conviction motion. Further, as noted above, the [appellant] admits to needing the records for "post conviction motions." The state's interest in prosecuting a convicted criminal "is not terminated until the sentence is carried out," and the probability of post conviction motions is strong. Skaggs at 390; and see 06-ORD-179.
Addressing the alleged procedural violation, Mr. McGee argues that the "Commonwealth responded to the request within three days of receiving a copy of the request from [the Department]. We have no information that addresses the delay in receiving this request from the [S]heriff's [D]epartment."
As a public agency, the Department must adhere to procedural and substantive provisions of the Open Records Act. More specifically, KRS 61.880(1) contains the procedural guidelines which a public agency must comply with in responding to requests. 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.
(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.
By its express terms, KRS 61.880(1) requires public agencies to issue a written response within three business days of receiving a request. In general, public agencies cannot postpone this deadline. 04-ORD-144, p. 6. "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). As frequently noted by the Attorney General, this is a "fundamental premise of the Open Records Act, underscored by the three day agency response time codified at KRS 61.880(1)." 01-ORD-140, p. 3. Here, the Department apparently did not respond to Mr. Keeling's request dated July 30, 2007, but did eventually forward the request to Mr. McGee's office; the Department offers no explanation for this delay in responding despite having two opportunities to address the issue. Although the burden on the agency to respond within three working days "is, not infrequently, an onerous one," 3 the only exception to this general rule is codified at KRS 61.872(5), which the Department did not invoke.
Noticeably absent from the initial response issued on the Department's behalf are both a citation to the applicable statutory exception and the requisite brief explanation of how that exception applies in this case. Public agencies 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 the burden of proof imposed by KRS 61.880(2)(c). 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 [a public 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. Similarly, this office has 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. Although Mr. McGee responded in a timely fashion upon receiving Mr. Keeling's request from the Department, his response lacks the specificity envisioned by KRS 61.880(1). Bearing in mind that public agencies like the Department have the burden of proof in denying requests under KRS 61.880(2)(c), and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office must conclude that the Department's initial response was procedurally deficient. Edmondson v. Alig, supra at 858; See 97-ORD-170. In responding to future requests, the Department should be guided by the longstanding principle that procedural requirements of the 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-080; 02-ORD-187. 4
That being said, the Department ultimately satisfied its burden of proof under KRS 61.880(2)(c) in denying the request on the bases of KRS 61.878(1)(h) and KRS 17.150(2) (incorporated into the Open Records Act by operation of KRS 61.878(1)(l)). In our view, 04-ORD-234 and 05-ORD-246 are controlling on the facts presented; a copy of each decision is attached hereto and incorporated by reference. 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 labeling an investigation "open," as evidenced by prior decisions 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). Of particular significance, it "is well established that if a criminal case is on appeal, records pertaining to the case are exempt from disclosure under KRS 17.150(2) as well as KRS 61.878(1)(h)." 05-ORD-246, p. 2. In Skaggs, the Court held that records like those requested may be withheld "so long as the possibility of further judicial proceedings in this case remains a significant prospect." Id. at 391. Because the record establishes that further judicial proceedings in Mr. Keeling's case are possible, the Department's denial of his request is affirmed.
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 While not artfully worded, a logical interpretation of Mr. Keeling's request is that he wishes to not only know the cost for such records, but also to receive a copy of same.
2 Although KRS 17.150(2) expressly applies only to "intelligence and investigative reports maintained by criminal justice agencies [like the Department] . . .," further discussion of this issue is unnecessary inasmuch as the Commonwealth's Attorney was notified of Mr. Keeling's appeal in his capacity as counsel for the Sheriff's Department against which the appeal was filed; in other words, his office is not a party. To clarify, the Commonwealth's Attorney's Office is a public agency within the meaning of KRS 61.870(1), and records in his custody are public records within the meaning of KRS 61.870(2), so the question becomes whether the records are open to inspection. In short, his office is not exempt, as a whole, from application of the Open Records Act. However, "records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation," as opposed to any other existing public records in his custody which are not otherwise protected, are permanently exempt from application of the Act by virtue of KRS 61.878(1)(h). (Emphasis added).
3 02-ORD-165, p. 3.
4 As a corollary proposition, the Department 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. Accordingly, 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.