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 actions of the Louisville Metro Police Department (Metro Police) relative to the request of Christopher Scoggins for certain Metro Police records pertaining to the case of Commonwealth v. Christopher Scoggins violated the Open Records Act. For the reasons that follow, we find no violation of the Act.
By letter dated September 13, 2008, Mr. Scoggins submitted a request to Metro Police containing thirty-two (32) separate requests. Metro Police initially denied the request on the basis KRS 61.878(1)(h), stating that the records requested were part of an ongoing investigation and would not be disclosed at that time. Shortly thereafter, Mr. Scoggins initiated the instant appeal. After receipt of notification of the appeal, Terri A. Geraghty, Assistant Jefferson County Attorney, provided this office with a response, on behalf of Metro Police, to the issues raised in the appeal. In her supplemental response, Ms. Geraghty individually addressed each of the items requested by Mr. Scoggins. The response divided the records requested into four broad classes: records that were provided; records which Metro Police did not have or which did not exist; records withheld under authority of KRS 61.878(1)(h) and KRS 17.150(2), incorporated into the Open Records Act by KRS 61.878(1)(l); and record requests in which more information was needed from Mr. Scoggins.
With respect to the class of records provided to Mr. Scoggins, any issues relative to those records are now moot. 40 KAR 1:030 Section 6 provides: "Moot complaints. If requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." See 04-ORD-046; 03-ORD-087. Since these records have been provided to Mr. Scoggins, no decision will be rendered as to access to those records. If Mr. Scoggins is aggrieved by our determination that the appeal as to these records is moot, he may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.
With respect to the class of records in which Metro Police advised either that they did not have a record(s) or the record(s) did not exist, this office has consistently recognized that a public agency cannot afford a requester access to records that it does not have or which do not exist. 93-ORD-134. Ms. Geraghty, in her response, advised that the records Mr. Scoggins was requesting did not exist and explained why. Obviously, a public agency cannot afford a requester access to a record that it does not have or which does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. Accordingly, we find that the action of the Metro Police relative to this class of records of Mr. Scoggins' request was proper and did not constitute a violation of the Open Records Act.
Mr. Scoggins made the following requests which were denied on the basis of KRS 61.878(1)(h) and KRS 17.150(2):
1. A log of the chain of custody of the evidence collected by the Louisville Metro Police Department along with the names of each person who handled the evidence and the time line which I believe is an Evidence Chain of Custody form 04-04-0127.
6. Documentation of the amount of the drug or lack of contained in the capsules seized by the police.
8. Copies of the investigative file and notes made by any investigating officer regarding the arrest including but not limited to all information in any form as it pertains to a "suspected drug house" on Vine Street to which the officers stated was under surveillance.
15. Any films or video made of any surveillance on the "suspected drug house" taken on August 13, 2008.
16. Copies of audio recordings or any media of surveillance of the "drug house" along with the address of that house.
19. All information recorded in the form or media regarding the evidence seized by the officers including but not limited to logs, lab tests, photos, records of means of storage while in custody, and location of that storage. This includes but is not limited to Crime Scene Unit processing form and drug lab documents.
21. Copy of the evidence receipt when evidence was taken.
28. Copy of the Investigative Record (LMPD#0450-02) in full.
With respect to numbered requests 3, 6, 8, 19, 21, and 28, Metro Police advised:
Records pertaining to Mr. Scoggins arrest are claimed exempt pursuant to KRS 61.878(1)(h) and KRS 61.878(1)(l) in conjunction with KRS 17.150(2). Louisville Metro Police Department is a law enforcement agency. The requested record was compiled in the process of detecting or investigating a statutory violation and is part of a pending criminal case in Jefferson County District Court (Case number 08-F-009685). A preliminary hearing is scheduled in the matter for October 30, 2008. The premature release of the information would be detrimental to the criminal prosecution of the matter. Pursuant to KRS 17.150(2), the record will be subject to public disclosure following the close of the criminal prosecution, unless excepted under some other applicable exemption pursuant to KRS 61.878(1).
With respect to request 15 and 16, related to the surveillance of the "suspected drug house" and "drug house," Ms. Geraghty advised:
I have been informed by the arresting officers that they do not have film or video [numbered request 16 -- "audio recordings"] of surveillance of suspected drug activity. Therefore the record cannot be produced because it does not exist. If any narcotic agents other than the arresting officers have film or video surveillance of a "suspected drug house" [numbered request 16 -- "drug house"] the record would be exempt pursuant to KRS 61.878(1)(h) and KRS 61.878(1)(l) in conjunction with KRS 17.150(2). Louisville Metro Police Department is a law enforcement agency. Any record would be compiled in the process of detecting or investigating a statutory violation and is part of the ongoing and current criminal investigation. The premature release of the information would be detrimental to any prospective criminal prosecution of the matter and could potentially hamper future investigation. Pursuant to KRS 17.150(2), the record will be subject to public disclosure following the close of the criminal prosecution, unless excepted under some other applicable exemption pursuant to KRS 61.878(1).
In our view, 05-ORD-103, a copy of which is attached hereto and incorporated by reference, is controlling on the facts presented. By invoking KRS 17.150(2) and expressly indicating that the requested records were to be used in a prospective law enforcement action or were part of an open investigation, Metro Police satisfied the burden of proof imposed upon public agencies by KRS 61.880(2)(c).
KRS 61.878(1)(l) provides in pertinent part:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction;
. . .
(l) Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
KRS 17.150(2) provides in relevant part:
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.
KRS 17.150(2) 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 has been made.
This office has stated in numerous past opinions that an investigative case file is not open for inspection while the case or investigation is ongoing. 95-ORD-15, 93-ORD-98, OAG 91-8, and OAG 90-143. Accordingly, it is the decision of this office that the Metro Police properly denied the request for these records on the basis that they were compiled in the process of detecting or investigating a statutory violation and are part of a pending criminal case or ongoing criminal investigation. The agency's denial is in accord and consistent with KRS 61.878(1)(l) and KRS 17.150(2).
Once the investigation and legal action have been completed or a decision has been made to take no legal action, the records requested will be subject to public inspection unless excluded by another applicable statutory exception to the right of public inspection. OAG 90-143.
Finally, with response to several requests, Metro Police indicated that it was unclear what record that Mr. Scoggins was seeking and advised that more information was needed in order for the agency to identify and determine if records responsive to these requests exist. If he has not already done so, Mr. Scoggins should resubmit these requests and provide additional information concerning the specific records he seeks.
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.