Opinion
Opinion By: Jack Conway, Attorney General; James M. Ringo, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Butler County Sheriff's Department violated the Open Records Act in denying Neal Kirby's July 14, 2008, request to Sheriff Joe Gaddie for "the sworn statement you indicated that you had in the July 9, 2008, article of the Bowling Green Daily News regarding alleged threats that I made."
In his letter of appeal dated July 18, 2008, Mr. Kirby indicated that he had hand-delivered the written request to Sheriff Gaddie on the afternoon of July 14, 2008, and after the fiscal court meeting that night, he told Mr. Kirby he would not give him a copy. Mr. Kirby further indicated that he had received no written denial of his request.
After receipt of notification of the appeal, Sheriff Gaddie provided this office with a copy of his July 21, 2008, written response to Mr. Kirby, in which he advised:
I received your letter on 7-14-2008 concerning your request for a sworn statement. If you are referring to the written statement I have from the individual whom you told, that you would, "Kill Joe Gaddie", this statement is part of an ongoing active investigation and as such, is not subject to, "Open Records Request", at this time. When the investigation is officially closed, you may renew your request at that time if you desire.
In a reply letter submitted to this office in response to Sheriff Gaddie's July 21, 2008, letter to him, Mr. Kirby asserts that the response was in violation of the three-day time frame allowed to respond to an open records request. He further asserted that, among other things, the sheriff had failed to demonstrate how disclosure of the requested statement would harm the ongoing investigation.
By letter dated August 6, 2008, Richard J. Deye, Butler County Attorney, provided this office with a supplemental response to the issues raised in the appeal. Elaborating on the Department's response, Mr. Deye advised in relevant part:
I believe the position of the Butler County Sheriff would be that pursuant to KRS 61.878(1)(h) records of law enforcement agencies compiled in the process of detecting and investigating statutory violations are permissible exemptions from an open records request if the disclosure of the information would harm the agency by revealing the identity of informants or by the premature release of information to be used in a prospective prosecution.
Addressing Mr. Kirby's argument that the Department had not met the requirements for application of KRS 61.878(1)(h), Mr. Deye asserted:
The response would be that the Butler County Sheriff's Department meets all three requirements suggested in Mr. Kirby's letter. Initially I don't believe that there is any serious question that the Butler County Sheriff's Office constitutes a law enforcement agency. Secondly it appears that even Mr. Kirby admits that the Sheriff's Office is investigating a violation of Terroristic Threatening (KRS 508.080). (A statutory violation) Thirdly since the alleged threat (Kill Joe Gaddie) wasn't made to Sheriff Gaddie personally we can presume that there was some type of informant whose identity may not need to be revealed. In the alternative, the timing of when the charges may be preferred against Mr. Kirby are within the discretion of the Sheriff.
In order to successfully raise KRS 61.878(1)(h) as a basis for nondisclosure, a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action.
Obviously the Butler County Sheriff's Department is a law enforcement agency and the Department has asserted that the requested statement was taken and is part of an ongoing investigation of terroristic threatening. Even assuming arguendo that the disputed record qualifies for exemption under the first two parts of the three part test, the Department's responses do not describe the harm that would result from premature release of the record at issue. See, for example, 05-ORD-259, in which we found that the Bowling Green Police Department had met this burden when it expressed concern that the incident report in question contained too many investigative details and that if these details were disclosed and a witness later came forward to corroborate the details of the incident, the argument would be made that the witness learned of the details from the release of the report and not from actual firsthand knowledge. We found that this description of harm to its investigation, and any subsequent prosecution, that might result from premature disclosure of the disputed incident report satisfied the requirements of KRS 61.878(1)(h). See, also, 97-ORD-52 (Public Corruption Unit of Attorney General's Office properly denied open records request for records compiled in active investigation on the grounds that premature disclosure would divulge information to subjects who had not yet been interviewed, and thus have a direct bearing on the outcome of the case) and 02-ORD-4, (Department for Medicaid Services properly denied request for records pertaining to an investigation of a doctor pursuant to KRS 61.878(1)(h), where investigation had been turned over to Attorney General, was ongoing, and premature disclosure of requested records would compromise its investigation.)
Moreover, this office has previously held that a "bare claim" that premature release of an investigative record, without a description of the harm that would occur, was insufficient to qualify for exemption under KRS 61.878(1)(h). 01-ORD-122; OAG 89-11. In the instant case, the Department's supplemental response only suggests that since the alleged threat was not made to the sheriff personally, that it can be presumed that there was some type of informant whose identity may not need to be revealed. This is not sufficient to establish the requisite harm.
Under the facts of this appeal, we conclude that the Department's reliance on KRS 61.878(1)(h), as a basis for withholding access to the requested record, is misplaced and was improperly withheld from disclosure under that exemption. While the Department might have successfully built a case for nondisclosure of the requested statement under KRS 61.878(1)(h), it has not done so in this appeal. Accordingly, having failed to meet its burden of establishing the harm that might result from the premature release of the requested statement, it should be made available for Mr. Kirby's inspection.
Finally, KRS 61.880(1) requires that an agency provide a written response to an open records request within three business days after its receipt. The record on appeal indicates that the response was made five business days after receipt of the request. The failure to timely respond within the three-day time period constituted a procedural violation of KRS 61.880(1).
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 proceedings.
Distributed to:
Neal KirbyJoe GaddieRichard Deye