Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Kentucky State Police (KSP) violated the Kentucky Open Records Act in denying Associated Press reporter Joe Biesk's September 25, 2009, request for "copies of, or access to, all recordings of all 9-1-1 emergency dispatch calls received regarding the Sept. 12 discovery of William "Bill" Sparkman's body in the Daniel Boone National Forest in Clay County, Ky. [and] copies of any incident reports or other similarly titled documents regarding the aforementioned incident." For the following reasons, we find that the KSP did not meet its burden under the cited exceptions to the Act.
On September 29, 2009, records custodian Shiann N. Sharpe responded to Mr. Biesk's request as follows:
This information is part of an investigation that is still open, identified as KSP case number 11-09-0829; accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h). OAG 90-143 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[."] Prior to initiating another request to this office for this information, I suggest you contact the Post 11 Records Clerk ? to ensure the case has been closed.
Mr. Biesk appealed to this office on September 30, 2009, stating that withholding the records was improper "because there is a public safety interest in having these documents come to light as expeditiously as possible." In response, KSP Legal Counsel Morgain M. Sprague stated:
Mr. Biesk's position is that the public's right to know outweighs the provisions of KRS 17.150(2) and 61.878(1)(h), and that the audio recording and initial reports pertaining to this matter should be released. However, the KSP does not have an "initial offense report" and the only records in existence are the dispatch log and the investigative report. These records are part of an open and ongoing investigation (which is still in its infancy as the incident occurred less than three weeks ago) and are exempt from disclosure through the provisions of KRS 17.150(2) and 61.878(1)(h). Disclosure of any records pertaining to this investigation could hinder its potential prosecution. [Citations omitted.]
This office ruled in 09-ORD-205 that the initial page of the KSP's Uniform Offense Report, or UOR-1, "is the functional equivalent of the 'initial offense report'" which must ordinarily be disclosed, and that the KSP must "demonstrate [] with specificity the harm that would result from disclosure of any information contained therein." We stated that if the KSP wishes to withhold any exempt information contained in that report, it must redact the record pursuant to KRS 61.878(4) with an explanation of the applicability of a relevant statutory exception. Since the response did not articulate a sufficient basis for withholding it in its entirety, if the subject file contains a UOR-1 (or its functional equivalent) the KSP's response to Mr. Biesk's request was improper insofar as it withheld the entirety of that document. A copy of 09-ORD-205 is attached hereto and adopted as the rationale for this determination.
With regard to the 911 recordings, assuming the KSP possesses such records, 1 in 07-ORD-140 the Attorney General ruled that these records can be withheld under KRS 61.878(1)(h) and KRS 17.150(2), as incorporated into the Open Records Act by KRS 61.878(1)(l), where they are part of an open criminal investigation and it is shown that release of the recordings could harm the agency by prematurely disclosing information to be used in a prospective law enforcement action. In this instance, however, no such showing of potential harm has been made beyond an assertion that the "records are part of an open and ongoing investigation." We have repeatedly found that something more is required to establish this element under KRS 61.878(1)(h) ( see 07-ORD-139 and decisions cited therein), although it need not be much more. Cf. 07-ORD-140; 06-0RD-190 (brief statement of case status coupled with assertion that premature disclosure would harm its resolution met the agency's burden in both instances). Likewise, under 17.150(2) the KSP has not asserted that the recordings contain information to be used in a prospective law enforcement action. Without even this bare minimum of information as to how the exception applies, we must find that the agency's burden was not met and any responsive 911 recordings should have been disclosed.
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.
Joe BieskShiann N. SharpeMorgain M. Sprague
Footnotes
Footnotes
1 The KSP's response to this appeal, by stating that "the only records in existence are the dispatch log and the investigative report," seems to imply that the KSP is not in possession of any 911 recordings. Since this is not stated explicitly, however, our analysis is based on the presumption that the KSP does possess such recordings.
- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -