Opinion
Opinion By: Jack Conway, Attorney General; Jessica R. C. Malloy, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Lakeside Park-Crestview Hills Police Authority violated the Open Records Act in denying attorney Meggan Smith's request for a copy of certain records from its investigative files on Fred Furnish, whom she represents in a motion to set aside his criminal conviction on grounds of ineffective assistance of counsel. For the reasons stated below, we find that the Police Authority presented sufficient justification for withholding the records under the circumstances.
Ms. Smith, through her investigator Jeff Carter, made the request on March 26, 2014. She asked for copies of the following three categories of records:
1. All Uniform Offense Reports & Supplement Uniform Offense Reports from your agency and or outside agencies assisting on said case.
2. Hand written and or electronic notations regarding the investigation of Fred Furnish.
3. All Inventory of Evidence & Chain of Custody Sheets.
On March 28, 2014, Col. Christopher J. Schutte of the Police Authority denied the records request under 61.878(1)(h). ( citing Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992)).
Ms. Smith appealed to the Attorney General, on April 21, 2014, arguing the relevant portion of Skaggs v. Redford was overruled by City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). KRS 61.878(1)(h) permits nondisclosure of "[r]ecords of law enforcement agencies . . . 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." (emphasis added).
In City of Fort Thomas v. Cincinnati Enquirer, supra, the Supreme Court of Kentucky held that, unlike the investigation and litigation files of Commonwealth's and county attorneys, investigative files of law enforcement agencies are not categorically exempt from disclosure. Rather, when a record pertains to a prospective law enforcement action, "the law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action." City of Fort Thomas, 406 S.W.3d at 851 (emphasis added). "A concrete risk, by definition, must be something more than a hypothetical or speculative concern ." Id. (emphasis added). Finally, "the mere fact that an enforcement action remains prospective is [not] enough to establish that disclosure of anything from a law enforcement file constitutes 'harm' under the exemption. " Id. at 852 (overruling in part Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992)).
Noting that the public agency bears the burden of establishing the applicability of an exception to the requirement of disclosure, the Court held it "must hold the agency to its burden of proof by insisting that the agency make a sufficient factual showing . . . to justify the exemption. " Id. "The agency should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release to permit the requester to dispute the claim and the court to assess it." Id.
On April 29, 2014, attorney Mary Ann Stewart filed a response to this appeal, on behalf of the Police Authority. She asserts that disclosure of the requested records would "jeopardize the Commonwealth's ability to fully prosecute Furnish" by revealing "the personal theories and work product of investigators. " This, she argues, constitutes a showing of harm in accordance with City of Fort Thomas. Additionally, she cites KRS 17.150(2)(d), which permits the withholding from public inspection of portions of "[i]ntelligence and investigative reports maintained by criminal justice agencies . . . if the inspection would disclose [i]nformation contained in the records to be used in a prospective law enforcement action. " While this subsection does not require a showing of harm to the agency, KRS 17.150(3) does require the agency specify the reason for withholding responsive documents:
When a demand for the inspection of the records is refused by the custodian of the record, the burden shall be upon the custodian to justify the refusal of inspection with specificity . Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section.
First, we find that no showing of harm has been made to justify withholding the UOR forms and the Inventory of Evidence & Chain of Custody Sheets, under KRS 61.878(1)(h). As we stated in 08-ORD-105, "[w]hile it is true that investigative records and reports 'are nearly always withheld from public inspection to protect sources of information and techniques of investigation and also to prevent premature disclosure of the contents to the targets of investigations,' this analysis has not been applied to incident reports, and certainly not in the absence of a particularized showing of harm." (emphasis added). Uniform Offense Reports are "the functional equivalent [of] incident reports." 05-ORD-003; see also 09-ORD-212; 09-ORD-205. Furthermore, we consider that UOR forms are records of a type normally filed in the court record and available to the defendant prior to trial. Likewise, the Inventory of Evidence & Chain of Custody Sheets are materials which would have been turned over to the defendant during pretrial discovery. Since the Furnish criminal matter is at a post-trial RCr 11.42 stage, we find that the agency has not asserted a sufficient showing of harm for withholding the UOR forms, under KRS 61.878(1)(h).
Second, we hold that the notes made by investigators need not be disclosed. RCr 7.24 provides for discovery of official police reports but specifically excludes investigator notes. See Cavender v. Miller, 984 S.W.2d 848, 849 (Ky. 1998); Hilliard v. Commonwealth, 158 S.W.3d 758, 766 (Ky. 2005). Thus, these notes are privileged under the discovery rules. Indeed, disclosure of investigator notes is only required in rare circumstances. See Cavender at 849. As the Police Authority notes could reveal "the personal theories and work product of investigators" this specific recitation justifies the failure to turn over the notes at this time and amounts to a particularized showing of harm to the agency, under City of Fort Thomas.
Third, we address the agency's argument that records on Mr. Furnish cannot be produced because the file has been turned over to the prosecutors. We have previously held that a public agency cannot disclaim responsibility for public access to its own records by entrusting them to the possession of a third party. See, e.g., 14-ORD-120; 04-ORD-123. Furthermore, this office has been informed by counsel for the agency that the Police Authority has in fact retained a copy of its file on the matter. Accordingly, this argument presents no obstacle to disclosure of the requested records.
Finally, however, we hold that the agency properly withheld responsive records, under KRS 17.150. Here, the Police Authority explain that there is an ongoing law enforcement action, under RCr 11.42. These actions are prospective actions under both Skaggs and Ft. Thomas. While evidence of a prospective action is insufficient to demonstrate harm under the Ft. Thomas case, that case did not address KRS 17.150. Rather, Ft. Thomas addressed the explicit showing of harm requirement in KRS 61.878(l). As KRS 17.150 does not include such a showing of harm, the canon of statutory interpretation known as the plain meaning rule requires the statute be read without a harm element. See Caminetti v. U.S., 242 U.S. 470 (1917) ("It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."). Accordingly, KRS 17.150 does not require the agency to demonstrate a showing of harm. It merely requires the agency to provide a specific reason for withholding the records. KRS 17.150, therefore, makes the records at issue exempt from disclosure until there is no prospective law enforcement action, so long as the agency specifies what that action is or could be. Having specified the nature of the prospective law enforcement action here, the agency properly withheld the responsive records under KRS 17.150.
Accordingly, we conclude that the Police Authority properly withheld responsive records in this matter. While the agency failed to demonstrate the harm required to withhold the records, under KRS 61.878(1)(h), and it cannot disclaim responsibility for disclosure by entrusting the records to a third party, KRS 17.150(3) permits the Police Authority to withhold the records at issue. As the agency explained, there is an ongoing law enforcement action, under RCr 11.42. Thus, the agency's disposition of the request was in compliance with the Open Records Act.
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. Under 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:
Meggan Smith, Esq.Mary Ann Stewart, Esq.Col. Christopher J. Schutte