Opinion
Opinion By: Jack Conway, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lexington-Fayette Urban County Division of Police ("the Division") violated the Open Records Act in denying requests from Linda A. Smith for records relating to two criminal investigations. For the reasons stated below, we find that the Division did not substantively violate the Open Records Act.
This appeal originates in two open records requests by investigators with the Kentucky Innocence Project ("KIP") which were later reiterated in a request made by KIP attorney Linda A. Smith. The first such request was made on July 13, 2009, by Gary Simkins:
[W]e request to view and receive a full copy of all documents, reports of evidence collected, logs, laboratory requests, laboratory results and all other documentation associated with the physical evidence related to: case number 07-CR-334; Eugene Brown[,] suspect/defendant. Vickie Gayle Lamb[,] victim. Further, please inform us of all physical evidence and records that remain in your possession pertaining to the above mentioned case.
On July 15, 2009, Assistant Records Custodian Karen H. Steed replied:
Due to the fact that the records are not centrally located, it will take some time to process your request. I will update you by letter in 5-7 business days as to the status of your request. At the end of this process, all non-exempt documents will be made available for your inspection.
This is precisely the type of response we have deemed inadequate under KRS 61.872(5) for not providing "a detailed explanation of the cause" for delay beyond three days or giving "the place, time, and earliest date on which the public record will be available for inspection. " 08-ORD-270, p. 2. Therefore, the Division committed a procedural violation of KRS 61.872(5) in its July 15 response.
Ultimately, the Division responded to Mr. Simkins with a letter from Karen H. Steed on July 21, 2009, stating:
The investigation concerning this report is still open; therefore, absent a court order, the documents you have requested are exempt from public inspection pursuant to KRS 61.878(1)(l) 1 which exempts:
Additionally, the records are also exempt from public inspection pursuant to KRS 17.150(2). This section 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. KRS 17.150(2) is incorporated into the Open Records Act pursuant to KRS 61.878(1)(l) which exempts "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
You may receive a public copy of this report only.
(Emphasis in original.)
The second request was made by investigator Dale Elliott, who wrote as follows on January 4, 2010:
This is a formal request for release of the investigative file and information showing the status of all evidence concerning the case of Commonwealth vs. Aaron Rivers.
This case is a 1997 Homicide Investigation and the victim is Steve Fox. Murder was committed on or about the 31st of March 1997. There was no trial, he confessed to the crime in 2006; 06-CR-01764 is the Circuit court file. I understand there was a Rape kit completed with the Autopsy, Hair and Cigarette butts used as evidence. I am requesting a list of all evidence listed in this case and the current status of the listed evidence.
Ms. Steed replied on January 13, 2010: 2
The case file that you have requested for Aaron Rivers has been cleared by arrest but is still considered an open case until all law enforcement action, including the serving of the sentence and probation, is complete. As the case is considered open, absent a court order the documents you have requested are exempt from public inspection. ?
This was followed by essentially the same analysis under KRS 61.878(1)(h) and KRS 17.150(2) that was used in the response to Mr. Simkins' request.
On February 12, 2010, Linda A. Smith wrote to Ms. Steed, making reference to Mr. Simkins' request of July 13, 2009, and making a five-part request for the following (numbers are added for ease of reference):
[1.] Any and all internal memorandum or documentation of procedures produced pursuant to, or as a result of, this previous request made on July 13, 2009, by you or any other person within the Lexington Division of Police about this previous request;
[2.] A copy of any and all written policies/procedures/ memorandum, or any other written or recorded document referencing, referring to, or outlining the case "opening" and "closing" procedures provided as a reason for said denial in the letter from your Division of July 21, 2009, including any definition or other explanation of those terms as used by the Lexington Division of Police;
[3.] A copy of any and all written policies/procedures/ regulations/ memorandum or any other written or recorded documentation, referencing or referring to the general "prospective law enforcement action" considered regarding the case of Eugene Brown/defendant or Vickie Gayle Lamb/victim;
[4.] A copy of any and all written policies/procedures/ regulations/ memorandum/ list etc., or any other written or recorded documentation referencing or referring to, the preservation of any and all evidence, by the Lexington Division of Police, including, but not limited to, documentary, physical, or demonstrative evidence, gathered once a police enforcement action is considered opened, begun, closed or complete, or a decision is made to take no further action on a matter, case, investigation or other law enforcement action, including any and all internal and external communication of such;
[5.] A copy of any and all written policies/procedures/ regulations/ memorandum or any other written or recorded documentation referencing or referring to the definition or explanation of the term "completion of the prosecution or a decision not to prosecute" and the preservation of any and all evidence after such a completion or decision is made as referenced in your letter dated July 21, 2009 and utilized by the Lexington Division of Police or by you as the records custodian [.]
On February 25, 2010, Ms. Steed responded as follows:
(1)
The Attorney General has stated that agencies do not have to provide documents that do not exist, nor honor requests for information as opposed to requests for specifically described documents, nor create records that do not already exist in order to answer questions, nor are they required to do research to make lists or compile information to answer questions. [Citations omitted.] Your request can not be processed until you precisely describe documents you wish to inspect. I can not ascertain the nature and scope for your request because of the broad language.
(2)
Opening/Closing of cases-This topic is addressed in General Order (G.O.) 96-1/A Records Management and in the Central Records Standard Operating procedure # 93-1/B Central Records Release of Records.
(3)
As in the response to number 1, please precisely describe the document(s) you want as I cannot ascertain the nature and scope for your request because of the broad language.
(4)
Preservation of evidence is addressed in General Order (G.O.) 91-13F and 91-13FA Property and Evidence Procedures.
(5)
All of the documents listed above respond to requested item(s).
Other than that, we follow case law and Attorney General opinions but will not do legal research for you.
(Emphasis in original.) Ms. Steed then advised what the cost would be to receive copies of the identified records by mail.
Finally, in a letter dated March 11, 2010, Ms. Smith made a fourth request, as follows:
[I]t appears from [your] correspondence that your agency interprets KRS 61.878(1)(l) to exempt the records from disclosure, for the entire length of the sentence received by Mr. Brown (five years) and Mr. Rivers (a life sentence) . Therefore, I am requesting any document or documents that discuss, in any way, this particular interpretation of said statute and or the policy that specifically addresses this exemption from disclosure. As you have referenced the above exemption to disclosure, I am requesting an explanation particular to each case as to in what precise way Mr. Brown and Mr. Rivers' cases fall under this exemption.
She then reiterated the requests made by Gary Simkins and Dale Elliott, and also restated her February 12 request in this form:
I hereby reiterate my previous request for any memorandum or other document created by your agency, as a result of the earlier Open Records requests your agency received from the Kentucky Innocence Project, and a copy of all policies/procedures/ regulations/ memorandum or any other recorded documentation referencing or referring to any prospective law enforcement action regarding Eugene Brown's case involving Vickie Gayle Lamb as the victim.
On March 30, 2010, Officer Aaron K. Kidd, Records Custodian, gave the following response:
The previous open records responses from Karen Steed still stand. This request appears to be a repetitive request and we have provided you with the documents that you are entitled to. I have provided you with a copy [of] the documents that were outlined in [the letter] dated February 25, 2010 from Karen Steed. I have also enclosed a copy of a receipt that you have requested.
Ms. Smith initiated this appeal on April 6, 2010.
With regard to the requests originally made by Gary Simkins and Dale Elliott, Ms. Smith essentially argues that the Division's interpretation of KRS 61.878(1)(h) and KRS 17.150(2) "is contrary to [its] previously stated process of determining when cases are 'closed'." She cites an explanation given to the Attorney General in 2006 by Lt. James A. Curless, the Cold Case Grant Program Director, in connection with a prior Open Records Decision, 06-ORD-265, as to the review process employed by the Division to determine whether a "cold" case would be reinvestigated. The issue in that appeal was how long the investigative file on an unsolved case concerning a 1965 death should remain open but inactive. Lt. Curless had been asked, among other things, about the procedures for formally closing a case. In part of his answer, he stated: "If a case is 'cleared by arrest' , then the Kentucky Open Records laws dictate that the case is still considered 'open' until the appeals process has been exhausted. " 06-ORD-265, p. 4.
Ms. Smith interprets Lt. Curless' remark as saying that a case involving a criminal conviction must be closed when the appeals process is exhausted. Therefore, she concludes that the Division's application of KRS 61.878(1)(h) and KRS 17.150(2) has changed since 2006 because it currently argues that law enforcement records remain exempt from disclosure until the sentence has been carried out. Her argument appears to be based on some unspecified concept of estoppel.
There are several problems with this argument. First, Lt. Curless was not charged with giving the agency's position on the law in 06-ORD-265, but was only answering factual questions about case closure procedures. Second, Lt. Curless' responsibility was for unsolved or "cold" cases, and there is no indication that he was responsible for closing cases where an arrest was made. Third, the closure of cases "cleared by arrest" was not the issue in 06-ORD-265, so the statement relied upon by Ms. Smith was irrelevant in that appeal. Fourth, even if Lt. Curless' information was accurate on all points, including irrelevant ones, his assertion that the law requires the case to remain open until the appeals process is exhausted is not equivalent to an assertion that the Division closes a case, or believes that it must close a case, as soon as the appeals process is completed. For those reasons, we do not believe the Division has taken inconsistent positions on KRS 61.878(1)(h) or KRS 17.150(2), and therefore we need not decide whether an estoppel argument has any merit.
The Division's response to this appeal was submitted on April 21, 2010, by attorney Michael R. Sanner. With respect to the requests made originally by Gary Simkins and Dale Elliott, we agree with Mr. Sanner that as to KRS 17.150(2) this appeal is indistinguishable from 09-ORD-104, a copy of which is attached hereto and adopted as the basis for our present decision affirming the denial of those requests. We note that while the Division has not articulated the harm disclosure of the records would cause to the agency as required by KRS 61.878(1)(h), there is no requirement of a showing of harm to invoke KRS 17.150(2) . The term "intelligence and investigative reports" in KRS 17.150(2) is, in our view, broad enough to include the items requested in this situation. Therefore, under
Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992), the Division properly denied inspection of criminal case records where the sentences had not been fully carried out.
Regarding the five-part request made by Linda Smith on February 12, 2010, Mr. Sanner asserts that the Division produced all responsive records for items 2 and 4. He argues as follows concerning item 1:
No new procedures were produced because of the January [sic] 13, 2009 request. The only document produced as a result of the request was the response previously sent to the requestor. The Division of Police does not produce new procedures every time it receives and responds to an open records request. Absent a further clarification of what the requestor is seeking to inspect, the Division of Police has no clue what type of documents to search for.
As for item 3, which appears to have been another effort to locate new policies and procedures enacted as a result of Mr. Simkins' request, Mr. Sanner again asserts that there were none. Item 5, insofar as it was not addressed by the Division's response to item 4, amounted to a request for any documents defining "completion of the prosecution" with reference to KRS 17.150(2). Mr. Sanner argues:
As explained by Ms. Steed, the Division of Police relied on the statutory exemptions as stated in her response, Kentucky case law and Attorney General Opinions. The Division of Police is not the records custodian for Kentucky case law or Attorney General Opinions. [A] government agency is not required to do research, to make lists, or to compile information to answer questions.
Thus, as to items 1 and 3, the Division asserts that there are no responsive records other than what has already been provided. As to item 5, the Division contends that the only responsive materials not already provided would be case law and the opinions of this office, so that locating and providing such materials would constitute legal research not required by the Open Records Act.
Given these representations, we find no substantive violation of the Open Records Act. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In this case, however, the Department in its initial responses did not affirmatively state this to be the case, instead relying on the position that the request was too broad and insufficiently particular. While confusingly worded at times, in our view the request from Ms. Smith was not excessively broad or vague. See generally
Com. v. Chestnut, 250 S.W.3d 655, 661 (Ky. 2008) (applicant "could not reasonably be expected to request blindly, yet with particularity, documents from a file that he had never seen").
Since it was incumbent on the Division to assert the nonexistence of additional responsive records, the initial response on February 25, 2010, did not fully discharge the agency's duty under the Act. See 02-ORD-144, p. 3 ("[A]n agency's inability to produce records due to their nonexistence is tantamount to a denial and ? it is incumbent on the agency to [state their nonexistence] in clear and direct terms? While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient"). This constituted a procedural violation of KRS 61.880(1), which provides that a public agency "shall notify in writing the person making the request, within the three (3) day period, of its decision" regarding the records in question. 10-ORD-048. This procedural violation, however, was mitigated insofar as the February 25 response indirectly represented that the Division could not identify any further responsive records.
Lastly, the Division correctly maintains that a public agency is not required to perform legal research in response to an open records request. 06-ORD-050; 03-ORD-063; 01-ORD-165. The final request by Ms. Smith on March 11, 2010, falls partially into the category of legal research as well, and otherwise it constitutes a request for information. To the extent that the March 11 request was for information as opposed to records, the Division was not required to comply. 03-ORD-028. Accordingly, apart from the procedural deficiencies already mentioned, we find no violations of the Open Records Act by the Division of Police.
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.
Linda A. SmithMichael R. Sanner, Esq.Karen H. Steed, Assistant Custodian
Footnotes
Footnotes
1 Although Ms. Steed gave the citation to KRS 61.878(1)(l), the language quoted indicates that the intended reference was to subsection (1)(h).
2 The record does not reflect when the Division received any of the requests involved in this appeal; accordingly, we cannot state whether the responses to this and the subsequent requests were timely under KRS 61.880(1).