Opinion
Opinion By: Jack Conway, Attorney General; Amye L. Bensenhaver, Assistant Attorney General
Open Records Decision
This matter having been presented to the Attorney General in an open records appeal, and the Attorney General being sufficiently advised, we find that the Rockcastle County 911 Board failed to present sufficient proof of harm to the Mt. Vernon Police Department, or any other agency, from disclosure of a "911 tape [and log] from Wed. 1-11-12 between 7:30 and 8:30 p.m." to overcome the presumption that these records are nonexempt public records. KRS 61.871; KRS 61.872; KRS 61.880(2)(c). Its partial denial of Michael Sheliga's January 13, 2012, open records request therefore constituted a violation of the Open Records Act.
In originally denying Mr. Sheliga's request for the January 11 911 tape and log, 1 the Board indicated that the records were "unavailable because of an ongoing investigation." 2 In supplemental correspondence directed to this office, the Board amplified on its position, albeit minimally, through Rockcastle County Attorney William D. Reynolds. Mr. Reynolds confirmed the existence of an ongoing investigation, citing KRS 61.878(1)(h), but stated that he was "not at liberty to discuss" and that "[p]ossibly more charges could be filed concerning this matter."
Unable to resolve Mr. Sheliga's appeal on the facts presented, this office requested a copy of the disputed tape and log for in camera inspection pursuant to KRS 61.880(2)(c). 3 Additionally, we asked that the Board "provide, to the extent possible, a description of the harm to agencies involved in the referenced investigation and/or prosecution that would result from premature disclosure of the requested 911 recording. "
Shortly thereafter, Mr. Reynolds responded to our inquiry, explaining that "if the agency has to turn over work product and crucial tapes, this would weaken our case and hinder us from making our case . . . . If Mr. Sheliga gets the documents, not only would our investigation be hindered through what we already know, but I feel sure the jury pool could be tainted." Mr. Reynolds also arranged for the transmission of copies of the requested records to this office for in camera inspection. Our review of these records, coupled with Mr. Reynolds' statements concerning investigation and prosecution, do not establish sufficient harm to the Rockcastle County 911 Board, the local law enforcement agency, or prosecutorial authorities to satisfy the Board's burden of proof.
Resolution of the issue presented in this appeal turns on the legal analysis set forth in 11-ORD-146, 4 a copy of which is attached hereto and incorporated by reference. There, we affirmed the Boone County Public Safety Communications Center's denial of a request for the specified recording and portions of a dispatch log that contained previously unreleased evidence establishing critical elements of an offense still under investigation by the sheriff the disclosure of which would harm the sheriff's investigation by undermining his ability to assess the credibility of witnesses. We contrasted our holding in that open records dispute with our holding in 09-ORD-227 in which the Whitley County E-911 Center invoked KRS 61.878(1)(h) without "identif[ying] the law enforcement agency conducting a criminal investigation or present[ing] any 'particular and detailed information' from that agency about the harm it would suffer from disclosure of the records." 11-ORD-146, p. 4. The appeal before us is more closely akin to 09-ORD-227 than 11-ORD-146.
Our review of the tape and dispatch log confirms the existence of general radio communications concerning a traffic stop. The records contain little more. Certainly, the records do not "contain primary evidence establishing critical elements of the offense that are central to the . . . investigation" or compromise the ability of law enforcement officials to assess the credibility of witnesses by ascertaining "whether a witness accurately described the crime scene" based on his or her actual knowledge or information previously made public. The Board's unsubstantiated statements that disclosure would "weaken [its] case," hinder its investigation, or taint the jury pool do not persuade us. The records speak for themselves.
Accordingly, we find that the Rockcastle County 911 Board did not present sufficient proof of harm to the Mt. Vernon Police Department, or any other agency, to supports its invocation of KRS 61.878(1)(h) and meet its burden of proof in denying Mr. Sheliga's request.
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:
Michael SheligaBonnie RoarkHowell HolbrookWilliam D. Reynolds
Footnotes
Footnotes
1 The Board's original response was procedurally deficient insofar as it did not cite the statutory exception upon which it relied in denying Mr. Sheliga's request or explain how the exception applied to the records withheld. The response therefore violated KRS 61.880(1).
2 The Rockcastle County 911 Board honored Mr. Sheliga's request for the minutes of its meetings for the past six months with the exception of the unapproved minutes of its January meeting.
3 KRS 61.880(2)(c) provides:
[T]he Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed.
4 In 11-ORD-146 we rejected a number of the arguments Mr. Sheliga advances relative to the propriety of a 911 dispatch center's invocation of KRS 61.878(1)(h). We include a copy of that decision to dispose of these arguments as well.