Request By:
Sally Wasielewski
Karen H. Steed
Logan Askew
Michael R. Sanner
Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Lexington Fayette Urban County Government, Division of Police violated the Kentucky Open Records Act in denying Sally Wasielewski's request "to inspect and copy" nine categories of records and information relating to a specified case identified as CR # 2008-006083. With regard to items which are properly characterized as requests for information rather than specifically described public records, the Division properly declined to honor Ms. Wasielewski's request; a public agency is not statutorily required to compile a list or create a record for the purpose of satisfying a request. Assuming that any existing records in the possession of the Division are potentially responsive to said requests for information and not protected under any of the exceptions codified at KRS 61.878(1), the Division should make such records available to Ms. Wasielewski for inspection during normal business hours. Because the investigative records being sought are "part of a criminal case file that is part of an active judicial proceeding, " the Division properly denied access in accordance with KRS 17.150(2), KRS 61.878(1)(h),
Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992), and prior decisions of this office; such records may be withheld "so long as the possibility of further judicial proceedings in [this] case remains a significant prospect."
By letter dated April 14, 2008, Ms. Wasielewski requested "the opportunity to inspect and copy" the following:
1. The officer in charge identified by name and rank and title of the cleanup of the alleged meth lab at the Best Western Hotel, 2241 Elkhorn Drive, room 264, beginning January 10, 2008. This includes the initial removal of any items from the room even if the term "cleanup" applies to subsequent activity by other entities or agencies.
2. If the HazMat team is comprised of Lexington Police officers, their agents or employees, please state their names and rank. If the "HazMat" team is not made up of anyone connected to the Lexington Division of Police, please so state and identify which agency or other entity they are part of.
3. All documents, including reports, summaries, emails, correspondence with any entity, including but not limited to the Lexington Health Department, the Kentucky Environmental and Public Protection Cabinet, the Justice Cabinet, Kentucky State Police or any other entity which states what cleanup action was taken to render this site in compliance with state or federal law.
4. Specifically, all laboratory reports, all field testing, which sets forth the nature and extent of the hazardous materials, chemicals, or items examined, tested, confiscated or destroyed in the course of the hazardous material cleanup of this suspected meth lab. If the Lexington Police did only preliminary testing, please include that information and the nature of the items tested and/or destroyed and the results of any tests whether field tests or otherwise.
5. In the event that the Lexington Division of Police did not participate, direct or review this cleanup, please state who did, identified by name, title and address.
6. Please identify any special units within the Division of Police which are qualified or trained or assigned specifically to dealing with the hazardous materials in suspected meth labs.
7. With regard to paragraph # 5 state where the Lexington police are trained in this specialty such as EKU, national seminars, etc.
8. All documents which state when the site was determined remediated and the name, address and phone number of any official or entity which granted final approval.
9. All documents which contain financial costs associated with the removal of materials from the motel rooms, their testing, and the cleanup. If the Lexington Division of Police has applied for or been given any grants or other funding to reimburse its cost, please provide that information.
In a timely written response, Karen H. Steed, Assistant Records Custodian, responded on behalf of the Division, advising that the case in question has been identified as CR # 2008-006083. Although the case "has been cleared by arrest, it is not yet a closed case as prosecution is not yet complete." Because the investigation "concerning this report is still open," Ms. Steed advised Ms. Wasielewski that "absent a court order, the documents you have requested are exempt from public inspection pursuant to KRS 61.878(1)[(h)]." In addition, the records are "exempt from public inspection pursuant to KRS 17.150(2) . This section provides for the nondisclosure of intelligence and investigative reports maintained by criminal justice agencies prior to the completion of the prosecution or the decision not to prosecute." As correctly observed by Ms. Steed, KRS 17.150(2) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), pursuant to which "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are removed from application of the Act.
In denying Ms. Wasielewski's request, Ms. Steed further explained:
Also, much of your request asks for information rather than documents. The Attorney General has stated that agencies do not have to provide documents that do not exist, nor honor requests for information as opposed to requests for specifically described documents, nor create records that do not already exist in order to answer questions, nor are they required to do research to make lists or compile information to answer questions. 00-ORD-04, 99-ORD-71, 01-ORD-216. Your request cannot be processed until you reasonably describe documents you wish to inspect.
Regarding the portion [Item 3] of your request that seeks ["All documents . . ."] the Attorney General has stated as a precondition to inspection, a requesting party must identify with reasonable particularity those documents which he wishes to review. The Attorney General has stated that a request for any and all records which contain a name, a term or a phrase is not a properly framed open records request, and that it generally need not be honored. Such a request places an unreasonable burden on the agency to produce often incalculable numbers of widely dispersed and ill-defined public records. 00-ORD-132. Furthermore, the Attorney General has stated that the Open Records Act was not intended to provide a requestor with particular information or to require public agencies to compile information to conform to the parameters of a given request. 00-ORD-07.
Arguing that KRS 61.878(1)(h) requires a showing of harm, the "information requested" is "not specific to any given criminal prosecution," the Division has "too broadly interpreted the exception which is designed to prevent harm to ongoing investigations," and there "is a public interest in use of public funds and personnel in this context," Ms. Wasielewski initiated this appeal from the foregoing denial by letter dated April 23, 2008.
Upon receiving notification of Ms. Wasielewski's appeal from this office, Michael R. Sanner, Attorney Senior, supplemented the Division's response. 1 In Mr. Sanner's view, the appeal "should be dismissed as many of the items are questions and ask for information rather than request inspection of documents." Citing 00-ORD-07, Mr. Sanner reiterates that it "is well-settled that an agency does not have to answer questions or compile information to conform to the parameters of a given request." Any documents not already provided to Ms. Wasielewski "are part of criminal case CR No. 2008-006083 which is pending before the Fayette Circuit Court." Relying upon 07-ORD-216, Mr. Sanner correctly argues that "investigative records are exempt so long as the possibility of further judicial proceedings remain[s] a significant prospect."
More specifically, Mr. Sanner confirms the Division's position that Items 1 (partial basis for denial), 2, 5-7, and 9 (partially) are requests for information "and need not be honored" per 00-ORD-7. With regard to Items 1 (alternative basis for denial), 4, and 8, Mr. Sanner reiterates that Ms. Wasielewski has asked for documents which are "part of a criminal case file that is part of an active judicial proceeding and therefore exempt" pursuant to KRS 61.878(1)(h), KRS 17.150(2), and 07-ORD-216. According to Mr. Sanner, honoring Item 3 of Ms. Wasielewski's request would place an unreasonable burden on the Division "to produce incalculable numbers of widely dispersed and ill-defined public records" under KRS 61.872(6) and 00-ORD-7; any such records would also fall within the parameters of KRS 61.878(1)(h) in our view. In denying Item 9, Mr. Sanner advises that no documents exist which "break down financial costs the Division incurs on specific incidents" and the remainder of the request is "a request for information rather than a request for documents and need not be honored. Any grants for funding submitted by the [Division] are general in nature and are not broken down to specific incidents as requested." In sum, the Division believes that Ms. Wasielewski's appeal should be dismissed "as many of the items ask questions and are requests for information which are outside the scope of the Open Records Act. " One item is "blanket in nature and need not be honored as an undue burden." Any existing documents which have not already been provided to Ms. Wasielewski "are part of an ongoing criminal case in an active judicial proceeding and are exempt from disclosure by KRS 61.878(1)(h), KRS 17.150(2), and 07-ORD-216." Because the Division's response is consistent with governing precedents, the denial is hereby affirmed.
Requests for information
As the Division has twice observed, a significant number of the items requested are best described as either questions or as requests for information rather than specifically described public records. More specifically, Items 1 (name, rank and title of the lead officer though a responsive document exists but was properly withheld on the basis of KRS 61.878(1)(h)), 2 (name and rank of HazMat team members), 5-7 (name, title and address of whoever participated in the cleanup, any "special units" qualified, trained or assigned to such cleanups, and where officers are "trained in this specialty"), and 9 (second part asking whether Division has applied for grants, etc.) are not properly framed requests under the Open Records Act. Early on, this office clarified that "[t]he purpose of the Open Records Law is not to provide information, but to provide access to public records which are not exempt by law." OAG 79-547, p. 2; 04-ORD-144. In OAG 89-45, this office recognized that the Open Records Act "[does] not require public agencies to carry out research or compile information to conform to a given request." OAG 89-45, p. 3, citing OAG 79-547 and OAG 83-333. At issue in that decision was a request for the addresses of individuals whose names the requester had previously secured. Characterizing this request as "a request for research to be performed, rather than for inspection of reasonably identified public records, " the Attorney General noted that the public agency from which the records were sought "had no compiled record corresponding to the request." See also 95-ORD-27; 96-ORD-53; 02-ORD-213.
In our view, the reasoning contained at pp. 3-6 of 07-ORD-042 is controlling on this issue; a copy of that decision is attached hereto and incorporated by reference. 2 A public agency such as the Division is not statutorily required to compile a list or create a record to satisfy a request submitted under the Open Records Act; however, the analysis does not end there. "While it is certainly true that public agencies are not required to compile information to satisfy a request, we believe that agencies are required to make available for inspection, during normal office hours, records that might yield the information sought." 97-ORD-6, p. 5 (original emphasis). To the extent any exist, the Division must provide Ms. Wasielewski with an opportunity to inspect records in the possession of the Division which are potentially responsive to the aforementioned items of her written request so that she may extract the information herself, assuming that she wishes to exercise this option per KRS 61.872(3)(a); nothing else is required.
Requests denied on the bases of KRS 61.878(1)(h) and KRS 17.150(2)
With regard to Items 1 (existing document listing the officers at the scene), 4 ("all lab reports, all field testing, " and the results of any testing) , and 8 (documents indicating when the site was "remediated" and the name, address and phone number of any official or entity which granted final approval), the Division properly relied upon KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and KRS 61.878(1)(h) consistent with 07-ORD-216; the instant appeal presents no reason to depart from this governing precedent. Both of these provisions "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 (emphasis added). In an early open records opinion, the Attorney General analyzed the purpose underlying KRS 61.878(1)(h), and its "companion statute," KRS 17.150(2), observing that "[i]nvestigative 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 investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2 citing Privacy: Personal Data and the Law , National Association of Attorneys General (1976).
More recently, this office determined that the term "investigative report" is "broad enough to extend to laboratory, forensic, and other reports generated in the course of an investigation." 05-ORD-246, p. 2. In that decision, the Attorney General also reaffirmed the well-established principle 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). See e.g., OAG 76-424; OAG 82-356; OAG 86-47; OAG 91-91; OAG 92-46; 95-ORD-69." Id., p. 2. Thus, in OAG 83-356 the recognized "that a criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken." Id., citing
Cornett v. Judicial Retirement and Removal Commission, Ky., 625 S.W.2d 564 (1982). These decisions were "premised on the notion that if a criminal case is on appeal, the possibility exists of a remand for a new trial, and for this reason the prosecution is not completed." 05-ORD-246, p. 3. Both logic and precedent dictate that records concerning "an active judicial proceeding" may be withheld.
In our view, the reasoning contained in 07-ORD-216, upon which the Division relied in support of its position, applies with equal force on the facts presented; a copy of that decision (and the decisions adopted therein) is attached hereto and incorporated by reference. Based on a line of decisions dating back to 1976, affirmed by the
Kentucky Supreme Court in Skaggs v. Redford, Ky., 844 S.W.2d 389 (1992), and reaffirmed by the
Kentucky Supreme Court in Bowling v. Lexington-Fayette Urban County Government, Ky., 172 S.W.3d 333 (2005), this office must conclude that any existing records which are responsive to Items 1, 3, 4, and 8 of Ms. Wasielewski's request may be withheld "so long as the possibility of further judicial proceedings in [this] case remains a significant prospect." 3 Skaggs at 391.
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 In so doing, Mr. Sanner correctly notes that Ms. Wasielewski attached a different written request to her appeal "from the request the Division of Police received on or about April 14, 2008." Because Ms. Wasielewski has not objected to Mr. Sanner's assertion and the written response of the agency which is attached to her appeal sets forth the original request in its entirety, a copy of which Mr. Sanner also includes with his written response for verification, the original request as written is our focus. To clarify, Item 8 was inadvertently omitted so there is a discrepancy in the numbering; the Division initially referred to the items in the proper sequence and this office also refers to Item 9 as Item 8 and Item 10 as Item 9.
2 With regard to statutory obligations of a public agency upon receipt of a request for nonexistent records or those which the agency does not possess, the analysis found at pp. 6-9 of 07-ORD-042 is determinative relative to any "documents which contain financial costs associated" with the cleanup, etc. The Division cannot produce for inspection or copying records which it does not have; no violation occurred in this regard. See 07-ORD-188; 07-ORD-245.
3 Although the Division opted to rely on KRS 61.872(6) in denying Item 3 of Ms. Wasielewski's request, any "reports, summaries, e-mails, [or] correspondence" containing the specified information also fall within the parameters of KRS 61.878(1)(h); that being said, the Division's reliance on KRS 61.872(6) is consistent with decisions interpreting this provision such as 00-ORD-7 and 05-ORD-014.