Opinion
Opinion By: Jack Conway, Attorney General; Tad Thomas, Assistant Deputy Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police violated the Kentucky Open Records Act in denying Kentucky New Era News Editor Julia Hunter's September 16, 2009, request for the KSP "report regarding the finding of a dead body in the parking lot of Jackson Purchase Medical Center in Mayfield on Sept. 14." In failing to cite the relevant statutory exception and explain how it applied to the records being withheld, KSP violated KRS 61.880(1). Because the KYIBRS Report is the "Uniform Offense Report," the "UOR-1 (Initial Page)" is the functional equivalent of the "initial offense report" being sought, and KSP has not demonstrated with specificity the harm that would result from disclosure of any information contained therein, this office finds that KSP improperly relied upon KRS 61.878(1)(h) in denying access entirely. In accordance with governing precedents, KSP must redact any exempt information from the report per KRS 61.878(4), citing the relevant statutory exception (s) and explaining how it applies to the information being withheld, and release the nonexempt portions.
By e-mail sent on September 16, 2009, Trooper Dean Patterson, Public Affairs Officer, KSP Post 1 Mayfield, acknowledged receipt of Ms. Hunter's written request "for the report involving the Betty Kelsey death investigation." Trooper Patterson indicated that the Open Records Act "does not apply due to the investigation still being underway. Once the investigation is closed, then an open records request can be resubmitted." By letter of the same date, Ms. Hunter initiated this appeal, correctly observing that Trooper Patterson violated KRS 61.880(1) in failing to cite the specific exception and provide a brief explanation of how it applied. Ms. Hunter "assume[d] that he was referring to KRS 61.878(1)(h)" in denying access for the stated reason. As Ms. Hunter observed, this office has "long held initial offense reports to be subject to the [O]pen [R]ecords [A]ct." Relying upon OAG 77-102, "and succeeding open records decisions," Ms. Hunter argued that "police incident reports, as opposed to the investigative files, are not, generally, exempt from public inspection. " In addition, "the basic facts of the incident have already been reported and released via news release from the KSP and are subject to much discussion within the community." Ms. Hunter noted that the "initial offense report usually contains the nature of the incident, identities of victims, the time, date and location of the offense and the public agency investigating it. Consequently, it seems improbable the release of the report would jeopardize an investigation."
Upon receiving notification of Ms. Hunter's appeal from this office, Morgain M. Sprague, KSP Legal Counsel, responded on behalf of the agency. In her view, Trooper Patterson's response "may have been procedurally deficient in that it failed to state the statutory authority that was the basis for the denial," but his response "was substantively correct." 1 According to Ms. Sprague, KSP "does not have an 'initial offense report' and the only records in existence are the dispatch log and the investigative report." Citing KRS 17.150(2) and 61.878(1)(h), Ms. Sprague argued that said records "are part of an open and ongoing investigation (which is still in its infancy as the incident occurred ten days ago) and are exempt from disclosure. " In her view, disclosure "of any records pertaining to this investigation could hinder its potential prosecution."
Pursuant to KRS 61.880(2)(c) and 40 KAR 1:030, Section 3, the undersigned counsel subsequently requested that KSP provide additional information to assist in resolution of the issues presented. More specifically, this office asked KSP to provide us with a copy of the "investigative report" for in camera review and to "please explain with more specificity" how disclosure of that potentially responsive document "would harm the agency in accordance with KRS 61.878(1)(h)," 05-ORD-003, and 08-ORD-174. In relevant part, Ms. Sprague responded as follows:
[T]he investigative report (the investigation itself) is of an open and ongoing investigation and is not yet complete. The KSP would be irreparably harmed by release of either a non-final or a final investigation into a crime that a prosecutor has yet to decide whether to prosecute, to a public media source. The investigation contains the identity of witnesses, identifies evidence, contains summaries of witness interviews, etc., and, as such, this report clearly is exempted by the provisions of KRS 17.150(2) and 61.878(1)(h) until prosecution is complete or a determination not to prosecute has been made. See OAG 90-143, which states, "Numerous other opinions of this office have concluded that investigative files and reports maintained by criminal justice agencies are not subject to public inspection until after prosecution is completed or the investigation has been concluded and a determination has been made not to prosecute the matter. . . ."
Having reviewed the records provided for in camera inspection, the undersigned counsel requested, under the same authority, clarification regarding the "standard recordkeeping process involved from the beginning of a KSP investigation until the conclusion," specifically asking KSP to identify "the specific documents generated by name and explain[] the purpose that each document serves." This office also requested that KSP provide us with a copy if "any policies or procedures exist which dictate specific documentation that KSP officers must generate in any investigation" and to "[e]xplain the difference, if any, between the documents which are often referred to interchangeably as 'uniform offense reports,' 'initial offense reports,' and 'incident reports.'"
By letter dated November 20, 2009, Ms. Sprague complied with our final request, initially observing "it is clear that there is confusion between KSP documents, system verbiage and those descriptions used by [Ms. Hunter]." Ms. Sprague offered the following insight:
First, in response to your specific questions, the "KYIBRS Report" and "Continuation Page/Supplementary Uniform Offense Report" are documents that are generated in the course of the investigation. The KY[IB]RS report is the uniform offense report. The continuation page is simply a continuation of the "KYBIRS" report, as indicated by the title of the document. The KYIBRS report and continuation pages are the investigative reports. A copy of [KSP] policy OM-C-1 concerning criminal investigations and reports as well as a copy of the Case Management Handbook are enclosed for your reference.
Second, in regards to the terms "initial offense reports" and "incident reports" the KSP does not create initial offense reports or incident reports. The KSP understands that some police agencies generate an initial offense or arrest report separate and apart from the investigation but KSP has no administrative control or input. In addition, many members of the public refer to Computer Aided Dispatch (CAD) logs, also called dispatch logs and CAD Incident [D]etails, as "incident reports." The KSP has interpreted some requests from the public for "incident reports" to be requests for CAD/dispatch logs but this practice caused a great amount of confusion. Items referred to as "preliminary reports" can mean many different reports such as preliminary lab reports, witness statements, coroner or autopsy reports, etc. These preliminary documents are typically contained in the case investigation and would not be subject to disclosure until the case is closed pursuant to KRS 61.878(1)(i) and (j). Similar to the documents sought by [Ms. Hunter].
Last, please be advised that the KYIBRS report and any continuation or supplemental pages, including toxicology reports, laboratory examination reports, evidence logs, photographs, diagrams, videotapes, audio recordings, witness statements, autopsy and/or coroner reports, and sometimes the CAD/dispatch logs (reviewed on a case by case basis to determine whether it is included in the open investigation or subject to release through the provisions of the Open Records Act) may be included in the case investigation. Again, these documents remain exempt from disclosure until such time as prosecution has been completed or a decision not to prosecute has been rendered in compliance with KRS 17.150(2), KRS 61.878(1)(h), and numerous Open Records [Decisions].
Based upon the following, this office must respectfully disagree with KSP's ultimate disposition of Ms. Hunter's request. 2
As a general policy matter this office recognizes that the public has the right to know when crimes are being committed in their community and to obtain information, through the Open Records Act, which would establish whether or not law enforcement agencies are actively investigating those crimes and pursuing wrongdoers. To accomplish this goal, the Attorney General has recognized that records of law enforcement agencies are subject to public inspection unless specifically removed from application of the Open Records Act by one or more of the exceptions codified at KRS 61.878(1). OAG 76-478. This office has also held that "[p]olice departments do not have the authority to act privately, confidentially or secretly unless expressly authorized in particular kinds of cases." Id., p. 2. In OAG 76-511, the Attorney General reaffirmed this position, noting that "[t]he sovereign is a party to police actions and therefore the public has a right to inspect the records of . . . [its] actions." Id., p. 4. Both of these decisions were premised on the notion that:
Secret police activity without some overriding justification is repugnant to the American system of government. Consequently, when a citizen reports a crime to the police he may generally expect that the news media will learn of the report.
[A law enforcement agency] is the servant of the people and if a citizen wants the services of [that agency] to investigate a crime, he cannot expect that the matter will be kept a secret.
OAG 80-144, pp. 1, 2. On this basis, the Attorney General has consistently held that police incident reports, as opposed to investigative files, are not generally exempt from disclosure. 02-ORD-36; 99-ORD-27; OAG 91-50; OAG 89-76.
Recent decisions of this office have attempted to differentiate between the nomenclature describing the initiating documents utilized by the Commonwealth's various law enforcement agencies. This office has recognized that "uniform offense reports" are "the functional equivalent of the incident reports at issue in the cited opinions[/decisions]." 05-ORD-003, p. 5. Here we must conclude that the "UOR-1 ( Initial Page)," as the name suggests, can properly be characterized as the "functional equivalent" of the " initial offense report" Ms. Hunter requested. (Emphasis added.) According to page 4 ("Uniform Offense Report Forms: UOR-1 ( Initial Page)) of the "General Order OM-C-1," entitled "Criminal Investigations & Reports," a copy of which KSP provided to us, the "UOR-1 shall serve as the face sheet for all agency criminal and non-criminal investigative reports and supplements." (Emphasis added.) In addition, "[a] copy of all initial case reports (UOR-1) shall be submitted to the Criminal Identification and Records Branch, Uniform Crime Reporting Section within ten calendar days after the case is opened." (Emphasis added.) 3 Regardless of whether the document is entitled an "initial offense report" or a "UOR-1," the content and purpose are nearly identical; accordingly, this office finds the semantic distinction unpersuasive.
Here, there is no other document which serves the important public purpose of informing the requester of the existence of an open investigation of the death which was already in the public domain. 4 Furthermore, "the Attorney General has also recognized that portions of such records may be redacted by a law enforcement agency if the agency can articulate a basis for partial nondisclosure in terms" of one or more of the statutory exceptions codified at KRS 61.878(1). 04-ORD-104, p. 5. As the Attorney General observed in OAG 77-102, "[i]f a police department feels it necessary to withhold certain items from public inspection it may do so under KRS 17.150 [and/or KRS 61.878(1)(h)] but the burden is upon the custodian to justify the refusal of inspection with specificity. " Id., p. 1. Under this line of reasoning, a law enforcement agency must "separate the excepted and make the nonexcepted material available for examination," KRS 61.878(4), and provide specific justification for the partial nondisclosure. 05-ORD-003, p. 5.
In OAG 88-64, this office identified several categories of information that might qualify for exclusion, including "information about witnesses to a felony, about informants, [and] about the peace officers' comments or suggestions concerning the prosecution of the case ...." Id., p. 4. However, as Ms. Hunter correctly noted, the "initial offense report" generally contains more basic information such as "the nature of the incident, identities of victims, the time, date and location of the offense and the public agency investigating it." In other words, the kind of sensitive information which qualifies for exclusion if disclosure would reveal the identities of informants not otherwise known, or compromise the investigation or prosecution of a case, such as the "Synopsis," "Modus Operandi," "Accused," "Suspects," "Witnesses," "Evidence and How Marked," "Investigation," and "Attachments," is not contained in the responsive UOR-1. Rather, such information is found in the "Continuation Page/Supplementary" portion of the Uniform Offense Report or UOR-2, which Ms. Hunter did not request; accordingly, our analysis focuses exclusively on the UOR-1, a review of which confirms that said report is responsive, and this office makes no finding with regard to accessibility of the "dispatch log" or the "investigative report," etc.
In denying Ms. Hunter's narrowly framed request, KSP relied primarily on KRS 61.878(1)(h), which authorizes withholding:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory and regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action . . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In construing KRS 61.878(1)(h), the Attorney General has repeatedly observed:
In order to successfully raise this exception, 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.
KSP has not alleged with any degree of specificity the harm that would result from disclosure of the only responsive document in the possession of the agency, the UOR-1; accordingly, KSP failed to satisfy its burden of proof relative to KRS 61.878(1)(h) and improperly withheld the document in its entirety. As previously indicated, KSP must "separate the excepted and make the nonexcepted material available for examination" per KRS 61.878(4), and provide specific justification for the partial nondisclosure. To hold otherwise would elevate form over substance and contravene governing precedents.
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 HunterDean PattersonShiann N. SharpeMorgain M. Sprague
Footnotes
Footnotes
1 In failing to cite the applicable statutory exception (s) and briefly explain how it applied to the record(s) being withheld, KSP violated the mandatory terms of KRS 61.880(1), and therefore failed to satisfy the agency's burden of proof under KRS 61.880(2)(c). "[A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [] amount[] to substantial compliance." Edmondson v. Alig, Ky. App., 926 S.W.2d 856, 858 (1996). Because KSP essentially acknowledged this procedural violation and complied with KRS 61.880(1) on appeal, this office will not belabor the issue.
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2 KSP ultimately invoked KRS 61.878(1)(i) relative to the "investigation itself" and KRS 61.878(1)(i) and (j) relative to various "preliminary" reports, some or all of which might very well qualify for exclusion unless adopted as a basis for the final action of the agency; however, the accessibility of those documents is not at issue. Because a UOR-1 cannot properly be characterized as a draft, note, or correspondence with private individuals, KRS 61.878(1)(i) does not apply, nor does KRS 61.878(1)(j) given that a UOR-1 does not qualify as a recommendation or a memorandum "in which opinions are expressed or policies formulated or recommended." Further analysis is therefore unwarranted.
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3 In contrast, "[t]he UOR-2 form will serve as the narrative portion of any criminal or non-criminal case report (when a narrative report is needed) and will be an attachment to the UOR-1."
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4 This office acknowledges that, in some limited cases, a law enforcement agency may deem even the existence of an investigation confidential. In certain cases even the disclosure of an investigation may result in law enforcement's inability to obtain necessary information, or worse, result in harm to informants or other individuals. However, in those situations the burden is on the agency to make such a showing. Here, as discussed below, KSP was unable to show that the disclosure of the UOR-1 Form with redacted information would overcome the public's right to the information.
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