Request By:
Jesse Call
Sara Sidebottom
Kris Ellena
Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Northern Kentucky University Police Department violated the Open Records Act in denying that portion of Northerner staff writer Jessie Call's April 18, 2008, request for copies of documents relating to police reports 2008-00324, 2008-0336, and 2008-0339 to which the KYIBRS incident reports in those cases were responsive. It is the decision of this office that 08-ORD-105, a copy of which is attached hereto and incorporated by reference, is dispositive of the issue of Mr. Call's right of access to an unredacted copy of the KYIBRS incident reports. Under the rule announced in Cape Publications v. City of Louisville, 147 S.W.3d 731 (Ky. App. 2004), "[P]olice incident reports are matters of public interest and are public records . . . . As a result, the public should be allowed to scrutinize the police to ensure they are complying with their statutory duties. " Accord, 02-ORD-36; 04-ORD-188. Unless the KYIBRS reports identify the victim of a sexual offense, or a particularized privacy interest is articulated by the agency on behalf of the victim, and that privacy interest outweighs the public's interest in monitoring the NKUPD in the discharge of its statutory duties, these records do not enjoy protection under KRS 61.878(1)(a), (h), (i), or (j), or KRS 17.150(2) and must be disclosed in their entirety.
We affirm the NKUPD's denial of access to investigative records subsequently compiled by the department for the same reasons set forth in 08-ORD-105. Although the Department " did not meet its burden of proof in the invocation of KRS 61.878(1)(h) and KRS 17.150(2)," 08-ORD-105, p. 4, note 8 (emphasis added), insofar as "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 . . .," 08-ORD-105 at 6, the Department did meet its burden of proof in the invocation of KRS 61.878(1)(i) and (j), insofar as no such showing is required relative to these exceptions. Again, we find that 08-ORD-105 is dispositive of this issue.
Similarly, we affirm the NKUPD's denial of Mr. Call's request for media relating to police report 2008-00324. The Department discharged its statutory duty by advising him that no records exist that were responsive to this portion of his request, and, in the absence of a prima facie showing that such records do exist, we are obligated under the rule announced in Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333 (Ky. 2005), to affirm the Department's denial. We refer the parties to 07-ORD-188, a copy of which is attached hereto, for an analysis of the agency's statutory duty in responding to a request for a nonexistent record.
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.