Opinion
Opinion By: Jack Conway, 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 Christopher Davenport's February 26, 2010, request for a copy of a specified "Use of Force Investigation." Although KSP is unquestionably a law enforcement agency, the "Response to Resistance Report" which is responsive to Mr. Davenport's request was prepared collaterally to the subject criminal investigation, rather than "compiled in the process of detecting and investigating statutory or regulatory violations," and the agency's reliance on KRS 61.878(1)(h) was therefore misplaced. KSP also improperly relied on KRS 61.878(1)(j) as the alternative basis for denial given that KSP adopted the Report as the basis for its final action (a decision that no further investigation was necessary) and the Report consequently forfeited its preliminary characterization.
Upon receiving notification of Mr. Davenport's March 14, 2010, appeal, Roger G. Wright, Assistant General Counsel, responded on behalf of KSP, initially advising that the document Mr. Davenport seeks "is actually a Response to Resistance Report dated December 14, 2009, related to the deployment of a Taser during the course of [his] arrest by Trooper Edward S. Jones." Mr. Wright further explained that Investigation No. 11-09-1115, to which Mr. Davenport referred, "is actually a criminal investigation related to [his] arrest in McCreary County, Kentucky on December 14, 2006." Having conferred with one of the officers involved with Investigation No. 11-09-1115, Mr. Wright advised that the "investigation remains in open status."
More significantly, Case Nos. 09-F-00224 and 09-M-00635 in the McCreary District Court, which are the criminal actions related to Mr. Davenport's December 14, 2009, arrest, Mr. Wright explained, "were dismissed on or about February 22, 2010, due to an indictment not being returned within the allotted period of time following arrest. The case remains in an open status due to the intent of the officers to pursue presentment of the charges to the grand jury." According to KSP, the subject Response to Resistance Report "may be relevant to a charge filed against [Mr.] Davenport by Officer Jones in 09-M-00635." Because it may pursue this charge against Mr. Davenport, KSP's position is "that the report is not subject to release under KRS 61.878(1)(h) and KRS 17.150(2)." More specifically, in the agency's view, "information surrounding the use of a Taser in conjunction with the factual circumstances surrounding a charge of resisting arrest should not be released to the public prior to the completion of potential criminal proceedings, as public release of information could make it more difficult to select jury members without knowledge of charges." In this regard, KSP "must treat [Mr.] Davenport as any other requestor, as the Open Records Act does not recognize asserted special need access to records such as that being sought by [Mr.] Davenport." If criminal charges are reinstated against him relative to his December 14, 2009, arrest, KSP argued, "he should seek the report through discovery procedures."
KSP further asserted that "Response to Resistance Investigations involve intra-Department deliberative process considerations that should exempt such reports from disclosure under the Open Records Act. " As Mr. Wright explained, "[t]he purpose of such reports is to determine whether instances of officer-involved use of force are undertaken in compliance with Departmental policies, training and otherwise in conformance with law." Because "[o]fficers are required to cooperate in such investigations, and can be subject to discipline for failure to do so[,]" KSP maintained that such reports are protected under KRS 61.878(1)(j) as well. In support of that position, KSP cited City of Louisville v. Courier-Journal and Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982) and Palmer v. Driggers, 60 S.W.3d 591 (Ky. App. 2001).
With regard to the delay in processing Mr. Davenport's request, Mr. Wright observed that as of March 19, 2010, the date of his response, he was unable to confirm receipt of Mr. Davenport's original request "due to personnel turnover in the records custodian position which has resulted in a backlog of request processing." 1 In any event, KSP maintained that its denial of the request must be affirmed on the merits. Unable to make this determination without additional information, the undersigned counsel asked KSP to provide this office with a copy for in camera inspection per KRS 61.880(2)(c) and 40 KAR 1:030, Section 3. KSP promptly complied. Having reviewed the Report in dispute, this office finds neither argument persuasive and, consistent with governing case law, and prior decisions of this office relative to both KRS 61.878(1)(h) and (1)(j), respectfully disagrees.
Consistent with the fundamental principle that "free and open examination of public records is in the public interest," KRS 61.878(1)(h), like each of the other exceptions to the Open Records Act, must be "strictly construed" so as to afford the broadest possible access to public records. KRS 61.871. In relevant part, KRS 61.878(1)(h) authorizes public agencies to withhold the following public records in the absence of a court order:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or 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 records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884. (Emphasis added).
Resolution of the first issue presented hinges on the italicized language.
When, as in this case, a public agency relies upon KRS 61.878(1)(h) in denying access to public records, the need for specificity is "particularly compelling." 00-ORD-196, p. 3. In construing the relevant language of this provision, the Attorney General has repeatedly observed:
The agency must first establish that it is a law enforcement agency or an agency involved in an 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 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, pp. 2-3; 04-ORD-044; 03-ORD-15; 02-ORD-179; 00-ORD-196. It is beyond dispute that KSP is a law enforcement agency as required to trigger the application of KRS 61.878(1)(h); accordingly, the question becomes whether the Report in dispute was "compiled in the process of detecting and investigating statutory or regulatory violations." Here, as in OAG 89-11, 03-ORD-017, and 05-ORD-078, this office concludes that the public agency has not satisfied its burden of proof under KRS 61.880(2)(c) relative to this requirement.
In University of Kentucky v. The Courier- Journal and Louisville Times Co., 830 S.W.2d 373, 377 (Ky. 1992), the Kentucky Supreme Court implemented this legislative mandate, rejecting the University's claim that records it compiled during the course of a NCAA investigation were exempt from disclosure pursuant to KRS 61.878(1)(h). As the Court observed, "[t]his exemption applies only to law enforcement agencies or agencies involved in administrative adjudication. The University cannot seriously contend that it is a law enforcement agency. Moreover, the University itself conceded that the NCAA, a private regulatory entity, is the only 'agency' involved in 'administrative adjudication. ' Therefore, KRS 61.878(1)[(h)] would not apply." Because the University failed to satisfy this threshold requirement, the Court rejected its claim.
Applying the same analysis, the Attorney General has rejected public agency reliance on KRS 61.878(1)(h) in a series of decisions. See, e.g., 94-ORD-35 (despite being afforded two opportunities to satisfy its burden of proof, the Kentucky Board of Medical Licensure failed to justify its denial of a request with proof of the harm which would result from premature disclosure) ; 95-ORD-29 (City of Bowling Green's bare assertion that disclosure of information in a 911 tape would harm the city was insufficient to satisfy its statutory burden of proof relative to KRS 61.878(1)(h)); 96-ORD-155 (Department of Insurance was not engaged in the investigation of statutory or regulatory violations, would not be harmed by disclosure of rate filings, and thus improperly relied upon KRS 61.878(1)(h) in withholding those filings); 97-ORD-129 (Hardin County Drug Task Force's reliance on the "law enforcement exception" to withhold the police and procedures manual was misplaced because it was not compiled in the process of detecting and investigating statutory or regulatory violations); 01-ORD-67 (Cabinet for Health and Family Services failed to demonstrate that records of Medicaid payments for work performed by Dr. Steve Henry that were under examination by a federal grand jury were "compiled in the process . . ."); 02-ORD-179 (the record on appeal was devoid of proof that the Oldham County Animal Shelter compiled records concerning the care of a rescued animal in the process of detecting and investigating statutory or regulatory violations or that disclosure of the records would harm the agency). In sum, the issue presented has arisen in various contexts, but the analysis remains the same.
Given the mandate that the exemptions to the Open Records Act be strictly construed, codified at KRS 61.871, and the prohibition against the use of KRS 61.878(1)(h) by public agency custodians "to delay or impede the exercise of rights granted by KRS 61.870 to 61.884" contained in that exemption, a public agency can properly invoke KRS 61.878(1)(h) only if it clearly establishes that all three elements have been satisfied. In OAG 89-11, this office construed "records compiled in the process of detecting or investigating statutory or regulatory violations" 2 to mean "those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigation process," and not records "which were 'segregated' in connection with an investigation" but "not made uniquely in a specific detection and investigation process." Id., p. 3.
Although KSP is clearly a law enforcement agency, it has not established that the Response to Resistance Report satisfies the second element of KRS 61.878(1)(h). The Report details Officer Jones' use of a Taser on Mr. Davenport as he was fleeing the scene following a vehicle pursuit on December 14, 2009, which resulted in his arrest for various criminal offenses, and it was generated as part of the subsequent internal review by KSP of the actions taken by the Officer as opposed to being generated in the process of investigating the statutory violations that Mr. Davenport allegedly committed. In other words, the Report was generated contemporaneously with the incident in question and later "segregated" in connection with the related criminal investigation, or collaterally to it, as opposed to being a record that was "compiled in the process of detecting and investigating statutory or regulatory violations." OAG 89-11, p. 3. Because this necessary element has not been satisfied, consideration of whether KSP has adequately demonstrated the harm that would potentially result from premature disclosure of the Report is unnecessary. This office finds equally unpersuasive the assertion that KRS 61.878(1)(j) applies on the facts presented.
Our analysis is again guided by the legislative statement of policy codified at KRS 61.871, and the corollary judicial recognition that the Open Records Act "exhibits a general bias favoring disclosure. " Kentucky Board of Examiners of Psychologists v. Courier-Journal & Louisville Times Co., 826 S.W.2d 324, 327 (Ky. 1992). Nevertheless, the Attorney General is also cognizant that:
[d]espite its manifest intention to enact a disclosure statute, the General Assembly determined that certain public records should be excluded from disclosure. Among such records are . . . "Preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final action of a public agency; " and "Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended." KRS 61.878(1)[(i) and (j)]. From these exclusions, we must conclude that with respect to certain records, the General Assembly has determined that the public's right to know is subservient to . . . the need for government confidentiality.
Beckham v. Board of Education of Jefferson County, 873 S.W.2d 575, 577-578 (Ky. 1994).
Both the courts and this office have construed the language of KRS 61.878(1)(i) and (j), the latter of which KSP relies upon to deny access to the Report, in various contexts. See 02-ORD-86; 01-ORD-104; 99-ORD-220. Guided by an evolving body of case law, the Attorney General has long recognized that public records which are preliminary in nature forfeit their exempt status upon being adopted by the agency as a basis for its final action.
Applying the cited exceptions to reports generated during the course of an Internal Affairs investigation conducted by the City of Louisville Police Department in 1979, the Court of Appeals held as follows:
It is the opinion of this Court that subsections [(i) and (j)] quoted above protect the Internal Affairs reports from being made public. Internal Affairs, as was stipulated, has no independent authority to issue a binding decision and serves merely as a fact-finder for the convenience of the Chief and the Deputy Chief of Police.
Its information is submitted for review to the Chief who alone determines what final action is taken. Perforce although at that point the work of Internal Affairs is final as to its own role, it remains preliminary to the Chief's final decision. Of course, if the Chief adopts its notes or recommendations as part of his final action, clearly the preliminary characterization is lost to that extent.
. . . We do not find that the complaints are per se exempt from inspection once final action is taken. Inasmuch as whatever final actions are taken necessarily stem from them, they must be deemed incorporated as a part of those final determinations . . . .
City of Louisville, above, at 658-660 (emphasis added).
One year after City of Louisville, the Court reaffirmed its position in a case involving public access to complaints filed against licensed physicians with the Kentucky State Board of Medical Licensure, holding that complaints, whether formal public complaints or private individual complaints, are subject to public scrutiny once the Board has taken final action relative to the complaint. Kentucky State Board of Medical Licensure v. Courier-Journal and Louisville Times Company, 663 S.W.2d 953 (Ky. App. 1983). Of particular relevance, the Court again observed:
If these documents were merely internal preliminary investigative materials, then they would be exempt under the statute and the principles set out in City of Louisville. However, once such notes or recommendations are adopted by the Board as part of its action, the preliminary characterization is lost, as is the exempt status. Id. at 659.
Id. at 956. (Emphasis added.) Nine years passed before the courts revisited this issue in a published opinion. In University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court ratified the principle that "investigative materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action. " (Emphasis added). 97-ORD-168, p. 5.
In the intervening years, the issue presented was raised in multiple appeals and this principle was the common thread among the resulting decisions. See OAG 89-69; OAG 88-25; OAG 84-98; OAG 83-405. Said another way, each of the cited decisions was premised on the following notion:
Predecisional and investigative documents which are incorporated by the agency into its final action forfeit their preliminary status and are therefore subject to inspection. . . . Records which are of a purely internal preliminary investigatory nature are exempt. . . . Records which are preliminary in character but are subsequently adopted by the agency as a basis of its final action become releasable as public records.
97-ORD-168, pp. 5-6, citing 93-ORD-103, p. 11 (emphasis added); See 04-ORD-162. Acknowledging that KSP had correctly summarized the rule of law set forth in City of Louisville and its progeny, in 97-ORD-168, the Attorney General nevertheless concluded that KSP had interpreted "the rule too broadly." Id., p. 6. This office reasoned, in relevant part, "that an internal affairs report cannot be withheld under KRS 61.878(1)(i) and (j) if the final decision maker adopts the notes or recommendations it contains as part of his final action. Such records do not enjoy a uniquely protected status simply because they are characterized as internal affairs reports." Id. The purpose for which KRS 61.878(1)(i) and (j) were enacted, "namely to protect the integrity of the agency's decision-making process by encouraging the free exchange of opinions and ideas," the Attorney General observed, "is not served by the nondisclosure of an Internal Affairs report which is the basis for the final action taken." Id., pp. 6-7. See, in particular, 97-ORD-168, pp. 2-7. Based on its view of governing case law, KSP maintained that a "Use of Force" inquiry was identical, in all material respects, to an internal affairs investigation, but was "initiated upon the occurrence" 3 rather than the filing of a complaint, and was therefore protected, arguing that "only the underlying complaint, of which there is none, and the report indicating final action are open to public inspection. '" Id. The Attorney General rejected this position based on the reasoning found above, which, in our view, is controlling here. 4
Although this office cannot reveal the exact content of the Report in dispute, it contains a detailed synopsis of the events in question, and, more significantly, a notation by the officer from the Internal Affairs Branch indicating that no further investigation was necessary following a review of the incident. Said another way, the investigating officer from IA implicitly relied upon the content of the Report as the basis for his decision that no further investigation or action by KSP was required, which, in and of itself, constituted final action by the agency. In Palmer v. Driggers, above, the Court of Appeals incorporated the City of Louisville analysis that focused on final action as the event which results in forfeiture of the investigative records' preliminary character, but rejected the police officer's argument that his resignation precluded final action by the agency relative to allegations made against him thereby shielding all records concerning those allegations from public inspection by operation of KRS 61.878(1)(i) and (j). The Court adopted the reasoning found in 00-ORD-107, holding that "the fact that the agency decided to take no further action on the complaint or that the investigation was preempted by the [employee's] resignation, in our view, indicates that the 'final action' of the agency was to take 'no action' on the complaint." Id. at 597 ( emphasis added). Similarly, in this appeal, the final action of the agency was the decision to take no action, i.e., that no investigation was necessary. Inasmuch as the Report was implicitly adopted as the basis for that decision, it forfeited its preliminary characterization. 5
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.
Christopher Davenport, # 165788Emily M. PerkinsRoger G. Wright
Footnotes
Footnotes
1 Although personnel turnover is not a permissible reason for delaying agency response under KRS 61.872(5), the only exception to KRS 61.880(1), and KSP failed to issue a written response within three business days of receipt in violation of KRS 61.880(1) assuming that KSP actually received the request, such factual issues regarding delivery and receipt cannot be conclusively resolved in this forum; accordingly, the Attorney General makes no finding in this regard.
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2 As the Attorney General observed in 97-ORD-29, the quoted statutory language has "generally been interpreted as being applicable to such records as notes, witness statements, and documentary evidence gathered in the course of an investigation into a specific incident or incidents involving statutory or regulatory violations." Id., p. 2. In other words, the critical phrase refers to "particular records, not to an entire class of records."
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3 Our understanding is that KSP no longer refers to inquiries by the term "Use of Force, " and the record is unclear as to whether a Response to Resistance inquiry is the equivalent; however, the latter type of inquiry appears to share this distinction regarding how the process begins. As in 97-ORD-168, it appears that "the occurrence triggers the inquiry," and so "the report itself represents the initiating document."
4 In rejecting the agency's position that aninternal affairs investigative report must only be disclosed if it is "incorporated by reference" into the final action taken by the ultimate decision maker, the Attorney General reasoned:
[T]he courts purposefully employed the broader concept of "adoption" rather than "incorporation," relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation. To the extent that prior open records decisions of this office are inconsistent with this view, they are hereby modified. Where the preliminary investigative report or records are adopted as the basis of the final action taken, regardless of whether the report or records are incorporated by reference, the purpose for which KRS 61.878(1)(i) and (j) exists is no longer served, and the reports and records forfeit their preliminary characterization and must be disclosed.
01-ORD-83, p. 14.
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5 KSP may redact information the disclosure of which would constitute a "clearly unwarranted invasion of personal privacy" in accordance with KRS 61.878(1)(a).
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