Request By:
Jesse Call
Kristy Webb
Sara Sidebottom
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Northern Kentucky University Police Department violated the Open Records Act in partially denying Northerner staff writer Jessie Call's March 21, 2008, request for access to, and a copy of, "the police report and any other document relating to the incident detailed in Campus Crime Alert # 3, the burglary that occurred in University Suites over spring break." For the reasons that follow, we find that the Department's reliance on KRS 61.878(1)(a), (i), and (j) to support partial nondisclosure of the KYIBRS report was misplaced. Further, we find that the failure to articulate the nature of the particular harm to the agency from premature disclosure of an unredacted copy of that report compels us to reject the Department's position. We therefore find that The Northerner is entitled to an unredacted copy of the KYIBRS report. However, we affirm the Department's decision to withhold records compiled in its investigation of the incident pursuant to KRS 61.878(1)(i) and (j) until that investigation and enforcement action are concluded. 1
Mr. Call directed his request to Kristy Webb, Records and Dispatch Supervisor for the NKU Police Department. Ms. Webb responded on March 21 by providing him with an unredacted copy of Crime Alert # 3 and a redacted copy of the first page of the KYIBRS Report, both relating to the incident. Upon further inquiry, he was advised by NKU's Office of Legal Affairs that "[b]ecause the incident detailed in Campus Crime Alert # 3 is an ongoing investigation, the police report and information is exempt from disclosure by the University . . .[, including] the value of the items stolen." (Emphasis in original.) In support of the decision to redact the victim's name, room number, and phone number, the University invoked KRS 61.878(1)(a), 2 asserting that "disclosure of this information would constitute an unwarranted invasion of personal privacy." This appeal followed.
In supplemental correspondence directed to this office following commencement of The Northerner's appeal, NKU expanded on its position. On behalf of the University, General Counsel Sara L. Sidebottom explained that because of Ms. Webb's lack of familiarity with the Open Records Act, she erroneously released records to Mr. Call to which " he was not entitled at all ." (Emphasis in original.) Ms. Webb was subsequently advised that "all open records requests are processed through [Ms. Sidebottom's] office," and Mr. Call "was provided with the statutory exemptions for the information denied in a letter dated March 25, 2008." Elaborating on the application of the exemptions cited to the records withheld, Ms. Sidebottom reaffirmed the Department's reliance on KRS 61.878(1)(h) asserting:
[T]he information contained in the police report was part of an ongoing investigation, meaning the police department had not made any determination regarding the possibility of a law enforcement action. Releasing any of the information in the ongoing investigation would have been premature and potentially harmful because there had not been any definitive law enforcement action taken.
She advanced the same argument in support of the Department's reliance on KRS 17.150(2), incorporated into the Open Records Act by KRS 61.878(1)(l), 3 asserting, generally, that a "police department may withhold its records until prosecution is complete or a decision not to prosecute has been made, rendering the case closed," and that here "the investigation was open . . . ." Ms. Sidebottom cited several open records decisions issued by this office in support of NKU's position that "[t]he Attorney General has consistently recognized that a police case file is not open for inspection while the investigation is ongoing. " 4 While we concur with NKU in the view that records compiled in the process of investigating statutory or regulatory violations are generally protected from public disclosure until enforcement action is completed, invocation of KRS 61.878(1)(h) and KRS 17.150(2) is insufficient to sustain the agency's statutory burden of proof without a particularized showing of harm from premature disclosure of those records. Moreover, we find that these confidentiality provisions have not been construed to extend to incident reports, such as the KY1BRS report at issue in this appeal, except for those portions of the reports that identify victims of sexual offenses. Cape Publications v. City of Louisville, 147 S.W.3d 731 (Ky. App. 2004); 02-ORD-36.
In 04-ORD-188, the Attorney General determined that the University of Kentucky Police Department improperly relied on KRS 61.878(1)(a), (i), (h), and (l), as well as KRS 17.150(2) , in partially denying the University newspaper editor's request for eight incident reports identified by case number. A copy of 04-ORD-188 is attached hereto and incorporated by reference. At page 9 and 10 of that open records decision, we quoted the Kentucky Court of Appeals published opinion in Cape Publications v. City of Louisville , above at 2:
[P]olice incident reports are matters of public interest and are public records. 93-ORD-42, citing OAG 76-443. As a result, the public should be allowed to scrutinize the police to ensure they are complying with these statutory duties.
Based on the court's analysis, in 04-ORD-188 this office concluded that the University of Kentucky Police Department had "a statutory duty to release [the incident reports] for public inspection in full and without redactions absent a particularized showing of a heightened privacy interest in the individual report . . .," rejecting the UKPD's reliance on KRS 61.878(1)(a) to authorize nondisclosure of the reports.
Similarly, we rejected the UKPD's reliance on KRS 61.878(1)(i), "reaffirm[ing] the principle, dating back to OAG 77-102, that an incident report does not qualify for exclusion from public inspection under KRS 61.878(1)(i)." 04-ORD-188, p. 12. We referenced a 1983 opinion in which the Attorney General recognized that although "police incident reports are open to public inspection, case files are not open as long as the case is pending." OAG 83-366, p. 1; see also 04-ORD-104; 02-ORD-36; 99-ORD-27; OAG 91-50; OAG 89-76; OAG 80-210.
Finally, and perhaps most importantly, we determined that the UKPD "did not meet its burden of proof in the invocation of KRS 61.878(1)(h) 5 and KRS 17.150(2)." 6 Recognizing that incident reports are not generally accorded protection under KRS 61.878(1)(h) as records compiled in the process of detecting or investigating statutory or regulatory violations, at page 15 of 04-ORD-188 we noted that many open records decisions in which the Attorney General rejected the agency's invocation of KRS61.878(1)(h) "turn[ed] on the agency's failure to justify denial of an open records request with proof of harm that would result from premature disclosure of the records in dispute." Because UKPD had "not described any harm to it or its investigation that would result from disclosure of the incident report," we found insufficient proof in the record on appeal to support UKPD's denial of the newspaper's request for the incident reports.
Under the same line of reasoning, we found that "UKPD ha[d] failed to meet its burden under KRS 17.150(3) relative to invocation of KRS 17.150(2)." KRS 17.150(3) provides that when a demand for inspection of intelligence and investigative reports is refused by the custodian of records, "the burden shall be upon the custodian to justify the refusal of inspection with specificity. " Further, KRS 17.150(3) provides that the exemption "shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section." Because "UKPD ha[d] made no attempt to justify it denial with specificity, " we concluded that even if the disputed incident report "qualif[ied] as [an] investigative report[]," its reliance on the KRS 17.150(2) was unsubstantiated.
Here, too, we find that the Northern Kentucky University Police Department's reliance on KRS 61.878(1)(h) and KRS 17.150(2) to support denial of Mr. Call's request for the KYIBRS report, in part or in whole, was unsubstantiated. The Department vaguely asserted that "releasing any of the information in the ongoing investigation would have been premature and potentially harmful because there had not been any definitive law enforcement actions taken," but offered no specific proof of harm from disclosure of all or any portion of the incident report. While it is true that investigative records and 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 investigations," this analysis has not been applied to incident reports, 7 and certainly not in the absence of a particularized showing of harm resulting from premature disclosure of any portion of the incident report withheld. Accordingly, we find that the Northern Kentucky Police Department improperly redacted portions of the requested incident report and was in error in asserting that the report should have been withheld in its entirety. 8
Because "case files are [generally] not open as long as the case is pending," OAG 83-366, p. 1, we affirm the Department's reliance on KRS 61.878(1)(i) and (j) to authorize nondisclosure of records compiled in the investigation of the incident referenced in Crime Campus Alert # 3. These exemptions authorize nondisclosure of:
Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency.
Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Although these exemptions have typically been applied to inter- and intra-office communications upon which no final action has been taken, they have also been applied to records compiled in an investigation prior to enforcement action or the decision to take no action. See, e.g., City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982); Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Co., 663 S.W.2d 953 (Ky. App. 1983); University of Kentucky v. Courier-Journal and Louisville Times Co., 830 S.W.2d 373 (Ky. 1992); Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001). An officer's notes and written expressions of opinion as to targets of his investigation, the direction the investigation should take, and observations of, and opinions about, witnesses interviewed in the course of an investigation, fall within the parameters of KRS 61.878(1)(i) and (j) as preliminary notes, preliminary recommendations, and memoranda in which opinions are expressed, and therefore qualify for exclusion until such time as prosecution is concluded or a decision not to prosecute is made.
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 We cannot affirm the Department's reliance on KRS 61.878(1)(h) and KRS 17.150(2), relative to records compiled in its investigation, absent a particularized showing of harm to the agency from premature disclosure.
2 Misidentified as KRS 61.878(1).
3 KRS 61.878(1)(l)authorizes public agencies to withhold:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
4 Ms. Sidebottom did not amplify on the Department's reliance on KRS 61.878(1)(a) to support nondisclosure of the victim's name, room number, and telephone number.
5 KRS 61.878(1)(h)authorizes nondisclosure of:
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.
6 KRS 17.150(2) and (3) provide:
(2) 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.
(3) When a demand for the inspection of the records is refused by the custodian of the record, 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.
7 See Cape Publications v. City of Louisville , above at 2; 04-ORD-188; OAG 83-366, p. 1.
8 It is for the same reason that this office cannot affirm the Department's reliance on KRS 61.878(1)(h) and KRS 17.150(2) to support nondisclosure of "documents relating to the incident detailed in Campus Crime Alert # 3" that were apparently withheld in their entirety. While these records qualify as records of a law enforcement agency compiled in the process of detecting or investigating statutory or regulatory violations, within the meaning of KRS 61.878(1)(h), and thus investigative reports maintained by a criminal justice agency, within the meaning of KRS 17.150(2), the record on appeal is silent as to how their disclosure "would harm the agency" in its investigation and devoid of specificity as to the reasons "justify[ing] the refusal of inspection . . . ." See, e.g., 95-ORD-95, p. 2, 3; cited in 04-ORD-188, p. 14.