Opinion
Opinion By: Jack Conway, Attorney General; Michelle D. Harrison, Assistant Attorney General
Open Records Decision
At issue in this appeal is whether the Johnson County Sheriff's Office violated the Kentucky Open Records Act in the disposition of Nancy Coleman's April 2011 request for copies of the "[c]ell phone records for Deputy Marcillot used in the line of duty for February [19, 2011]," and the "[d]ispatch documents for all calls received by [the agency] for February [19, 2011]." Because the Sheriff's Office has not attempted to demonstrate the harm that would result from disclosure of the requested cell phone records, either initially or in response to Ms. Coleman's appeal, it has failed to satisfy its burden of proof relative to KRS 61.878(1)(h). 1 If the Sheriff's Office can articulate the reasons for its denial in terms of the requirements of KRS 61.878(1)(h) as to particular cell phone calls, it may withhold those records (or entries), but must provide Ms. Coleman with any to which KRS 61.878(1)(h) does not apply. Although the Sheriff's Office initially failed to notify Ms. Coleman that it does not maintain dispatch records, the Sheriff's Office ultimately advised her that any such records would be in the possession of the City of Paintsville. In order to fully discharge its duty under KRS 61.872(4), the Sheriff's Office should have also provided her with "the name and location of the official custodian of the agency's public records. "
By letter dated April 7, 2011, Johnson County Attorney Michael S. Endicott advised Ms. Coleman that his "understanding" was that "the records in question are in relation to a pending criminal case." Based upon his "reading of [the Open Records Act] and the opinions of the Attorney General in regard to these requests," it was Mr. Endicott's belief that Ms. Coleman should request these items "through discovery in the criminal case." Mr. Endicott, in relevant part, cited KRS 61.878(1)(h) without further explanation. This appeal followed.
Upon receiving notification of Ms. Coleman's appeal from this office, Mr. Endicott supplemented his response on behalf of the Sheriff's Office. Mr. Endicott first reiterated that any existing responsive documents "would be covered under the privy of KRS 61.878(H) [sic]" [inasmuch] as her child has been charged with driving under the influence charge [sic], who is believed to be Mitchell W. Coleman, Case No. 11-T-00411." He then advised that "the Johnson County Sheriff's [O]ffice does not maintain a log for calls to 911, [a request] would have to be addressed to the City of Paintsville and secondly, some [records] may apparently revolve around an ongoing criminal action in the Johnson District Court." As such, it is the position of the Sheriff's Office "that those documents would be [accessed] appropriately through the discovery process . . . pursuant to KRS 61.878(1)(H) [sic]." 2 This office finds, in accordance with existing law, that in denying access to any existing responsive dispatch records (log of 911 calls), the Sheriff's Office partially complied with KRS 61.872(4), but in denying access to all responsive cell phone records the agency failed to satisfy its burden of proof relative to KRS 61.878(1)(h); however, the Sheriff's Office may withhold some records, or portions thereof upon articulating the basis for denial in terms of the requirements of that provision. 3
Public agencies must comply with the procedural and substantive provisions of the Open Records Act regardless of the requester's identity or purpose in requesting access to the records, generally speaking. 4 More specifically, KRS 61.880(1) dictates the procedure which a public agency must follow in responding to requests made under the Open Records Act. In relevant part, KRS 61.880(1) provides that a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " (Emphasis added.) In construing the mandatory language of this provision, the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1)] directing agency action is exact. It requires the custodian of records to provide detailed and particular information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely comply with the requirements of the Act-much less amount [] to substantial compliance."
Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 04-ORD-208. In other words, a public agency must cite the applicable statutory exception, if any, and provide a brief explanation of how that exception applies to the records, or portions thereof withheld per KRS 61.880(1), in order to satisfy the burden of proof imposed upon public agencies per KRS 61.880(2)(c). 04-ORD-106, p. 6; 04-ORD-080.
As the Attorney General has consistently recognized:
While neither this office nor the Kentucky courts have ever required an itemized index correlating each document withheld with a specific exemption, such as that required by the federal courts in Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), we believe that [an agency] is obligated to provide particularized justification for the withholding of documents, or groups of documents, which are properly excludable [footnote omitted], and to release any documents which do not fall squarely within the parameters of the exception and are therefore not excludable.
97-ORD-41, p. 6; 04-ORD-106. In the same vein, this office has observed:
Although there is no clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6), which requires clear and convincing evidence to support denials resulting from unreasonably burdensome requests] it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c); KRS 61.882(3). It is also clear that a bare assertion relative to the basis for denial . . . does not satisfy the burden of proof. . . .
00-ORD-10, pp. 10-11, citing 95-ORD-61, p. 2 (emphasis added).
Noticeably absent from the initial and supplemental responses of the Sheriff's Office is any explanation of how KRS 61.878(1)(h) applies to the requested cell phone records. Bearing in mind that public agencies like the Sheriff's Office have the burden of proof under KRS 61.880(2)(c) in denying requests, and that KRS 61.880(1) "requires the custodian of records to provide particular and detailed information in response to a request for documents," this office must conclude that both responses lacked the requisite specificity and thus were procedurally deficient. Edmondson v. Alig, above at 858; See 97-ORD-170. In responding to future requests, the agency should be guided by the longstanding principle that procedural requirements of the Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-125, p. 5; 04-ORD-181.
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 KRS 61.878(1)(h), the Attorney General has repeatedly observed that "[i]n order to successfully raise this exception, a public agency must satisfy a three-part test." 95-ORD-95, p. 1. First, a public agency must establish that it is a law enforcement agency or a public agency involved in administrative adjudication. Id. Next, it must establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Id. 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. Id., pp. 1-2. 5 See 02-ORD-179; 00-ORD-196.
In
University of Kentucky v. Courier-Journal & Times Co., 830 S.W.2d 373 (Ky. 1992), the Kentucky Supreme Court implemented this legislative mandate, rejecting a claim by the University that records it compiled during the course of an NCAA investigation were exempt from disclosure under KRS 61.878(1)(h) because the University failed to satisfy the first part of the three-part test. Applying this analysis, the Attorney General has rejected public agencies' reliance upon KRS 61.878(1)(h) in a series of decisions. 6 In sum, the issue of whether a public agency has satisfied the requisite criteria to successfully invoke KRS 61.878(1)(h) has arisen in a variety of contexts, but the analysis remains unchanged. With regard to application of this provision, 03-ORD-015 is controlling; a copy of that decision is attached hereto and incorporated by reference.
Given the statutory mandate that the exemptions be strictly construed, found at KRS 6l.871, and the explicit prohibition against using KRS 61.878(1)(h) "to delay or impede the exercise of rights granted by KRS 61.870 to KRS 61.884," a public agency may properly rely on KRS 61.878(1)(h) only if it can demonstrate that it satisfies all three components of the test contained therein. The Sheriff's Office is unquestionably a law enforcement agency. However, even assuming that all of the responsive cell phone records were "compiled in the process of detecting and investigating statutory or regulatory violations," the Sheriff's Office has not even attempted to demonstrate how disclosure of those records could possibly harm the subject investigation. The fact that the investigation is ongoing is not enough, standing alone, to justify a denial. 07-ORD-147, p. 8; 10-ORD-130. Nor is the fact Ms. Coleman's son could also gain access through discovery.
The record on appeal is devoid of specific proof that any of the responsive cell phone records fall within the parameters of KRS 61.878(1)(h). The Sheriff's Office had two opportunities to satisfy its burden of proof; first, in responding to Ms. Coleman's request, and second, in responding to her appeal upon receipt of the notification this office issued. Assuming that said records qualify as records of a law enforcement agency compiled in the process of detecting or investigating statutory or regulatory violations, in the absence of any proof that premature disclosure of the records would harm the agency, this office must conclude that its reliance on KRS 61.878(1)(h) was misplaced. See 07-ORD-139. In so holding, this office is not suggesting that the Sheriff's Office cannot successfully build a case for nondisclosure of some records, or portions thereof, such as information concerning any calls from confidential informants, etc., by identifying those records, or portions thereof, and explaining how disclosure would harm the agency per KRS 61.878(1)(h), but has no alternative other than to conclude that it has done so here.
The remaining question is whether the Sheriff's Office fully discharged its duty in belatedly advising Ms. Coleman that a request for any existing dispatch records which might be responsive should have been directed to the City of Paintsville. As the Attorney General has long recognized, a public agency cannot produce nonexistent records or those which the agency does not possess for inspection or copying. Id., p. 6; 06-ORD-040. Rather, the right of inspection attaches only if the records being sought are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p. 10; 04-ORD-205. A public agency's response violates KRS 61.880(1), "if it fails to advise the requesting party whether the requested record exists," with the necessary implication being that a public agency discharges its duty under the Open Records Act in affirmatively indicating that no such records exist (or are in the possession of the agency) as the Sheriff's Office ultimately asserted here. However, the Attorney General began applying a higher standard of review to denials based upon the nonexistence of the records being sought after KRS 61.8715 took effect on July 15, 1994.
In order to satisfy the burden of proof imposed on public agencies by KRS 61.880(2)(c), public agencies must offer some explanation for the nonexistence of the requested records (or lack of possession, as the case may be) at a minimum. See 94-ORD-140 (records of subject investigation not in sheriff's custody because sheriff did not conduct the investigation); 97-ORD-17 (evaluations not in University's custody because written evaluations were not required by regulations of the University); 00-ORD-120 (x-rays of an inmate's injuries were not taken and therefore a responsive record did not exist); 04-ORD-075 (agency search for uniform offense reports relating to named individuals yielded no responsive records because none of the individuals named were involved in accidents as a complainant or a victim during the specified time frame). When, as in this case, a public agency denies that any such records exist or are in the agency's possession, and the record supports rather than refutes that contention, further inquiry is not warranted. 05-ORD-065, pp. 8-9; 07-ORD-190 (agency is not required to "prove a negative" to refute a claim that additional records exist). See
Bowling v. Lexington-Fayette Urban County Government, 172 S.W.3d 333, 340-341 (Ky. 2005) ("before a complaining party is entitled to such a hearing [to refute the agency's claim that records do not exist], he or she must make a prima facie showing that such records do exist"). However, the analysis does not end there.
Pursuant to KRS 61.872(4): "If the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " (Emphasis added.) The Sheriff's Office affirmatively indicated on appeal that it does not possess or maintain the records being sought, and notified Ms. Coleman that any such records would be in the custody of the City of Paintsville in substantial compliance with KRS 61.872(4); however, the agency did not provide Ms. Coleman with contact information for the official custodian of that agency's public records. To this limited extent, the agency's final response was deficient.
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.
Distributed to:
Nancy ColemanDwayne PriceMichael S. Endicott
Footnotes
Footnotes
1 Pursuant to KRS 61.878(1)(h), public agencies may withhold:
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.
2 The analysis contained at pp. 4-5 of 10-ORD-182, a copy of which is attached hereto and incorporated by reference, in relevant part, is controlling on this issue and refutes the agency's position. "Although parties to litigation should not use the provisions of the Open Records Act as a substitute for discovery requests, the Attorney General has consistently recognized that the presence of litigation does not suspend the duties of a public agency under the Open Records Act in a line of decisions dating back to 1982." Id., p. 4. Rather, "the Legislature clearly intended to grant any member of the public as much right to access to information as the next." Zink v. Commonwealth of Kentucky, 902 S.W.2d 825 (Ky. App. 1994)(citation omitted).
In Kentucky Lottery Corporation v. Stewart, 41 S.W.3d 860, 864 (Ky. App. 2001), the Kentucky Court of Appeals expressly agreed with this line of decisions by the Attorney General, opining that "an open records request should be evaluated independently of whether or not the requester is a party or potential party to litigation," and so held. Further discussion of this argument by the Sheriff's Office is therefore unwarranted.
3 In so holding, this office makes no finding as to whether the records, or portions thereof may be properly withheld on the basis of KRS 17.150(2), which the Sheriff's Office did not cite; likewise, this office does not comment regarding the potential applicability of RCr 7.24(2) or KRE 508, which may afford protection to some of the records, or portions thereof in the context of the judicial proceeding.
4 See 02-ORD-132, p. 7, citing Zink, above, at 828.
5 Unlike any of the other exceptions, 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.
6 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 . . ."); 00-ORD-196 (Jefferson County Corrections Department failed to demonstrate any harm to the Department that would result from disclosing the videotape of an incident that occurred in the Hall of Justice); 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). See also 96-ORD-56; 04-ORD-104; 05-ORD-178; 07-ORD-139.