Request By:
James (Chip) Adams II
Mary Ann Scott
Roger G. Wright
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying the request of James (Chip) Adams II to inspect six categories of records pertaining to the investigation of the August 1995 abduction of Heather Teague. Based upon the analysis contained in 07-ORD-140, a prior decision involving the same parties, underlying investigation, and issue, but different records, the Attorney General is compelled to affirm the denial by the KSP of Mr. Adams' request on the bases of KRS 61.878(1)(h) and KRS 17.150(2) because the investigation remains "open." In so doing, this office again defers to the KSP's classification of the investigation consistent with prior decisions; however, this office is also compelled to again remind the KSP of the mandatory language of KRS 17.150(3), echoed in KRS 61.878(1)(h), which provides that "[w]hen a demand for the inspection of records is refused by the custodian of 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.
By letter dated February 22, 2008, Mr. Adams requested to inspect the following investigative records:
1. All records showing the exact location where the Q16 debris was collected referenced in the April 8, 2005 report.
2. All records showing where the non-tested Caucasian hair found in the Q16 debris referenced in the April 8, 2005 DNA report is now located.
3. All records showing how the Q6 and Q7 swabs were stored which were taken from a Ford Bronco in 1995, while waiting to be tested that were referenced in DNA report of October 4, 2005.
4. All records showing or pertaining only to the existence of further forensic tests.
5. All records pertaining to how Marty Dill was Identified Post Mortem and where this took place.
On March 4, 2008, Mary Ann Scott, Official Custodian of Records, denied Mr. Adams' request "pursuant to KRS 17.150(2) and 61.878(1)(h)" because this "information is part of an investigation that is still open." Without further elaboration, Ms. Scott suggested that Mr. Adams contact the KSP Henderson Post Records Clerk prior to submitting another written request to the headquarters in Frankfort "to see if the case has been closed."
Citing OAG 89-80, Mr. Adams initiated this appeal by letter dated March 6, 2008, noting this case "will be thirteen (13) years old in a few months and now requires the Kentucky State Police to justify any denial of an Open Records Request." In Mr. Adams' view, it appears that his request "was greeted with a cookie cutter response and denial because the case is still under investigation or the Kentucky State Police have other reason for not releasing the requested information." A public agency cannot "indefinitely postpone access to investigative records by labeling an investigation ongoing. "
Upon receiving notification of Mr. Adams' appeal from this office, Roger G. Wright responded on behalf of the KSP, correctly noting that Mr. Adams "previously filed an appeal of the Kentucky State Police's (KSP) denial of his requests for other records pertaining to this investigation, and there is currently an appeal of the Attorney General's decision (07-ORD-140), which affirmed the denial pursuant to KRS 17.150(2) and KRS 61.878(1)(h), pending in the Henderson Circuit Court." As further explained by Mr. Wright, the instant appeal pertains to the same investigation, "which remains open and ongoing at this time, thereby making records pertaining to the investigation exempt from disclosure through the Kentucky Open Records Act (KORA) pursuant to KRS 17.150(2) and KRS 61.878(1)(h)." To summarize, Mr. Wright believes that Mr. Adams' appeal "should be denied as this investigation remains active at this time."
In addition, Mr. Wright notes that certain records being sought by Mr. Adams pertain to DNA analysis. "All records pertaining to DNA analysis are made confidential by KRS 17.175(4), and therefore are exempt from disclosure through the provisions of the KORA in compliance with KRS 61.878(1)(l), which states that records made confidential by another Act of the General Assembly shall remain exempt from disclosure. " In conclusion, Mr. Wright argues that because this matter "remains open 07-ORD-140 should be found controlling." Because this appeal does not present any reason to depart from the analysis contained in 07-ORD-140 and the authorities upon which that decision is based, this office is compelled to reach the same result here; accordingly, consideration of the additional basis for denial relative to certain records is unnecessary. 1 That being said, the Attorney General is also compelled to remind the KSP of the statutory obligation to justify its denial with specificity in light of the fact nearly a year has gone by since the previous decision was issued and no further insight has been offered regarding the status of this investigation which has now been "open" for nearly thirteen years.
In 04-ORD-041, upon which this office partially relied in 07-ORD-140, this office was asked to determine whether the KSP had properly denied a request submitted by John Yarbrough on November 26, 2003, for specified records concerning this investigation. Although "more than eight years [had] elapsed since the tragic abduction of Heather Teague and we certainly appreciate[d] Ms. Teague's need for closure," this office affirmed the denial because "Captain Nauert [had] confirmed that the case remain[ed] 'open' and 'active' and that disclosure of the requested records would jeopardize the ongoing investigation thereby enabling the KSP to meet its burden of proof, albeit marginally." Id., p. 8. Concurring with Mr. Yarbrough in his view "that a public agency cannot indefinitely postpone access to investigative records by labeling an investigation ongoing, as evidenced by OAG 89-80," the Attorney General noted this office has consistently recognized that such a determination is within the sound discretion of the law enforcement agency. Id., p. 8 (citations omitted). On the facts presented, the Attorney General found that it was "not appropriate for this office to substitute its judgment for that of the KSP on this issue." Id.
On May 11, 2007, Mr. Adams submitted a request for specified records concerning the abduction of Heather Teague but did not receive a response in a timely manner due to having submitted the request to a detective at the Henderson Post instead of the Official Records Custodian. Upon receiving notification of Mr. Adams' appeal challenging the failure to respond, which culminated in 07-ORD-140, Lieutenant Scott Miller responded on behalf of the KSP, denying the request on the bases of KRS 61.878(1)(h) and KRS 17.150(2) because the records implicated were "part of an open criminal investigation." Id., p. 2. Adopting the analysis contained in 04-ORD-041 and 05-ORD-193, this office reasoned as follows:
Because the records at issue are records of a law enforcement agency compiled in the process of detecting and investigating a statutory violation, the disclosure of which would harm the KSP by premature release of information to be used in a prospective law enforcement action, the KSP properly relied upon KRS 61.878(1)(h) and KRS 17.150(2), incorporated into the Open Records Act by virtue of KRS 61.878(1)(l), in denying Mr. Adams' request. Although a public agency cannot indefinitely postpone access to investigative records by labeling an investigation "open and active," as recognized in the cited decisions, this office has consistently held that it is "within the sound discretion of the law enforcement agency to decide when a case is active, merely inactive, or finally closed." OAG 90-143, p. 3; 04-ORD-114. Upon completion of the investigation or a determination not to prosecute, any investigative records which are responsive to Mr. Adams' request will be open for inspection unless specifically excluded from application of the Open Records Act by another statutory exception.
In so holding, this office relied upon the explanation provided by Lt. Miller, summarized on pp. 2-3 of 07-ORD-140, in support of the agency's reliance on KRS 61.878(1)(h) and KRS 17.150(2). Although the KSP did not elaborate any further upon the assertion that the subject investigation is "open" in responding to Mr. Adams' February 2008 request or this appeal, the reasoning of that decision, a copy of which is attached hereto and incorporated by reference, is equally applicable insofar as the Attorney General has no basis upon which to refute the characterization of the investigation asserted by the KSP or to depart from governing precedent. See also 05-ORD-103.
Nevertheless, this office questions the continued reliance by the KSP on KRS 61.878(1)(h) and KRS 17.150(2) in the absence of a more detailed explanation or specific insight regarding the status of the investigation, particularly since the likelihood of solving a case presumably decreases over time whereas the interest of the public in monitoring the actions of law enforcement agencies when a case remains unsolved increases proportionally. On this issue, the Attorney General recently observed:
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.
06-ORD-265, p. 7.
Although forty-one years had elapsed in that case, as compared to thirteen years here, the Lexington Fayette Urban County Government Division of Police had also explained that such cases were being reviewed in light of scientific and technological advancements and justified its denial with adequate specificity on appeal. Id., pp. 2-3. "Given the inordinate passage of time, and the corresponding likelihood that the [subject] 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)," this office found 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.'" Id., p. 9. Accordingly, the Attorney General held 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 [the requester] or assert some other statutorily recognized basis for denying access." Id. In accordance with 06-ORD-265, a copy of which is attached hereto and incorporated by reference, this office reminds the KSP of its duty "to justify the refusal of inspection with specificity" and to avoid invocation of these statutory exceptions "to delay or impede the exercise of rights" granted by the Open Records Act. See 05-ORD-058.
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 With regard to application of KRS 17.175(4), this office refers the parties to 03-ORD-126.