Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Trigg County Emergency Services violated the Open Records Act in denying Kentucky New Era reporter Julia Hunter's request for access to "the emergency dispatch log for October 15, 2008, and October 16, 2008," and "tapes of all 911 calls involving a house fire or alleged murder on Military Road on October 15, 2008." For the reasons that follow, we find that although it mischaracterized the records sought as "Kentucky State Police records," Trigg County Emergency Services ultimately met its statutory burden of proof in withholding the records on the basis of KRS 61.878(1)(h) at the request of a law enforcement agency with jurisdiction in the underlying criminal matter.
In initially responding to the New Era's requests, Trigg E-911 Director Kim Wiggins invoked KRS 61.878(1)(h) explaining that the criminal matter to which the requested records related was part of an open investigation. Shortly thereafter, Ms. Hunter initiated this appeal, questioning Trigg County Emergency Service's reliance on KRS 61.878(1)(h), and noting that in 07-ORD-139 the Attorney General rejected a 911 dispatch center's denial of a similar request.
In supplemental correspondence directed to this office following commencement of the New Era's appeal, Trigg County Attorney H. B. Quinn asserted that the requested records "are no longer our records, they are Kentucky State Police records." Alternatively, he argued that the records are exempt from public inspection pursuant to KRS 61.878(1)(h), furnishing this office with a copy of an August 12 letter from KSP Lt. Janet Barnett to Ms. Wiggins in which Lt. Barnett asked that "all 911 calls and radio traffic from the fire/death investigation on Military Road from Wednesday, October 15, 2008, not be released at this time." Lt. Barnett explained:
This matter is still an open investigation with our agency and any premature release could have an affect before this matter could be adjudicated at trial. The premature release of this information could possibly influence witness statements and thus disrupt this investigation. We are also awaiting the results of some forensic laboratory testing on certain items of evidence.
On August 26, 2009, KSP amplified on this position:
This office was contacted by Captain Nathan Kent, Kentucky State Police Post 1 Commander, regarding a discussion he had with staff from Trigg County 911 Coordinator's Office regarding an open records request that was submitted to that agency requesting copies of audio recordings of 911 calls and emergency dispatch logs related to the murders of three individuals for the dates of October 15, 2008 and October 16, 2008. Ms. Hunter of the Kentucky New Era, the requester, states in her appeal that "The office has also previously held that dispatch logs are, in general, open for public inspection in OAG 89-11, OAG 89-20 and 94-O RD-133." However, these dispatch logs and audio recordings are not 'general' in nature, they are part of an open and ongoing investigation of the murders of three people for which a Defendant is facing capital murder charges.
Captain Kent, the Post Commander of the agency that is investigating these capital murders, has advised this office that these recordings are crucial pieces of evidence in a pending capital murder investigation and that the premature release of these materials would jeopardize the prosecution of this case. It is anticipated that these recordings will be used during the trial of the Defendant and premature release of these recordings before prosecution has been completed would cause irreparable harm to both the prosecution and defense. Further, wide distribution of these recordings may taint the potential jury pool as citizens may convict the Defendant in the court of public opinion, making it difficult for the Defendant to obtain a fair trial.
In response to this office's KRS 61.880(2)(c) request, Trigg County Emergency Services provided this office with copies of the records in dispute. Having reviewed these materials, and considered the agencies' arguments in support of nondisclosure, we affirm Ms. Wiggins' denial of Ms. Hunter's requests.
Before we address the primary issue on appeal, we briefly respond to Trigg County Emergency Services' argument that the records sought are KSP records. In 98-ORD-100, this office addressed a similar argument in the context of a request to the Lexington-Fayette Urban County Government for records relating to two individuals. At page 4 of that decision, the Attorney General observed:
KRS 61.872(1) states that "[a]ll public records shall be open for inspection by any person, except as otherwise provided . . . ." More specifically, KRS 61.880(1) states that "[e]ach public agency upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." The term "public record" is defined as "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2). Nowhere in these provisions do we find a requirement that the agency both prepare and possess the requested records. [Footnote omitted.] Nor do we find any language which relieves the agency of these clearly established duties if the records are in the custody of another agency from which they could "more appropriately" be obtained.
Rather, in construing these provisions, the Attorney General has recognized on several occasions that:
OAG 91-21, p. 4 (holding that the City of Owensboro improperly denied requester access to records in its custody although those records were "the responsibility of the State and County"); OAG 90-71 (holding that the Kentucky Board of Pharmacy improperly refused to release salary records of its employees on the grounds that the records could more appropriately be obtained through the Department of Personnel); [additional citations omitted].
98-ORD-100, pp. 4-5. We have attached a copy of 98-ORD-100 and incorporate the analysis contained therein by reference. Although it was entirely permissible, indeed prudent, for Trigg County Emergency Services to ascertain KSP's position on release of the records before responding to Ms. Hunter's open records request, it could not avoid its duties under the Act by characterizing the records as "Kentucky State Police records."
Nevertheless, we find that Trigg County Emergency Services properly invoked KRS 61.878(1)(h) on behalf of the Kentucky State Police, the law enforcement agency responsible for investigating the triple homicide that resulted in the creation of the disputed records. The record in the instant appeal stands in marked contrast to the record in the appeal that culminated in 07-ORD-139 and upon which the New Era relies. In the latter appeal, the record was "devoid of specific proof that the requested records qualif[ied] for exclusion under KRS 61.878(1)(h)." Thus, we observed:
Central City Dispatch was afforded two opportunities to satisfy its statutory burden through the presentation of proof supporting its claim of exemption: first, in responding to The Messenger-Inquirer's original open records request, and second, in responding to this office's notification of receipt of [the] open records appeal. Assuming, arguendo, that the disputed records qualify as records of a law enforcement agency compiled in the process of detecting or investigating statutory or regulatory violations, we nevertheless find that in the absence of proof that premature disclosure of the records would harm Central City Dispatch, its invocation of KRS 61.878(1)(h) fails. While Central City Dispatch might have successfully built a case for nondisclosure of the requested records under KRS 61.878(1)(h), it has not done so in the instant appeal.
We were therefore left with no alternative but to conclude that the agency improperly withheld the requested records.
We find that Trigg County Emergency Services has successfully built a case for nondisclosure postulated on the harm to KSP's investigation of the triple homicide that would result from premature disclosure of the requested records. This office has recognized, on more than one occasion, that where there is concurrent jurisdiction between two agencies, or two agencies have an interest in the matter being investigated, the records of one agency may be withheld under authority of KRS 61.878(1)(h) if premature disclosure of its records will harm the ongoing investigation of the other agency. 97-ORD-52 (holding that the Cabinet for Public Protection properly relied on KRS 61.878(1)(h) in denying a request for lists and inventories of evidence taken from persons suspected of violating alcoholic beverage control laws, because it had turned the lists and inventories over to the Attorney General, the lists and inventories were part of the Attorney General's ongoing investigation, and the Attorney General advised that premature disclosure would harm the investigation and prospective law enforcement action "by divulging information to subjects yet to be interviewed . . ."). See also, OAG 90-116, 94-ORD-56, 02-ORD-146; compare 00-ORD-196. In such cases, however, the requirements codified at KRS 61.878(1)(h) are not relaxed, and it is incumbent on the agency resisting disclosure of the requested records to "provide particular and detailed information" and to articulate the basis for denying access to the specific documents requested in terms of the requirements of that exemption.
The need for "particular and detailed information" is particularly compelling when an agency relies on KRS 61.878(1)(h) as the basis for denying access to public records. Thus, in 95-ORD-95, and numerous decisions subsequent thereto, this office observed:
In order to successfully raise KRS 61.878(1)(h), 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. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.
95-ORD-95, p. 2, 3 (emphasis added); 97-ORD-93; 99-ORD-162 (and open records decision cited therein at page 4).
The records at issue in this appeal were compiled by the Kentucky State Police, a law enforcement agency, in the process of investigating a triple homicide. Trigg County Emergency Services, while arguably not itself a law enforcement agency, invokes KRS 61.878(1)(h) on KSP's behalf. Moreover, Trigg County Emergency Services articulates, again on KSP's behalf, the harm to KSP's ongoing investigation, as well as the subsequent prosecution, namely, influencing witness statements, disclosing evidence to be used during trial, and tainting the potential jury pool. 1 Our in camera review of the records confirms the validity of the arguments advanced by Trigg County Emergency Services on KSP's behalf. Compare, 00-ORD-196 (conversations with FBI conducted by representative of Attorney General's Office established that investigation had been concluded, that FBI had not asked that disputed record be withheld, and that there would be no harm to the FBI from disclosure) . We therefore affirm Trigg County Emergency Service's denial of the Kentucky New Era's request.
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.
Julia HunterKim WigginsH. B. Quinn
Footnotes
Footnotes
1 While the New Era correctly notes that the Attorney General has never granted blanket exclusion to 911 calls, radio traffic, or dispatch logs, we have approved denial of access to such records in those cases where particular and detailed information supporting nondisclosure is articulated in terms of the requirements of the exception invoked. If the New Era wishes to inspect those entries on the dispatch log for October 15 and 16 that are unrelated to the triple homicide, and that do not otherwise qualify for statutory protection, it is entitled to do so per KRS 61.878(4).