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 Daviess County Detention Center violated the Kentucky Open Records Act in the disposition of attorney Heather Blackburn's request for records on Michael Padgett, the defendant in a pending criminal case in Daviess Circuit Court. For the reasons that follow, we find no substantive violation of the Act.
Ms. Blackburn made her request on September 24, 2014, for certified copies of incident reports, "disciplinary records and actions," "logs of use of restraints or physical force," and audio or video recordings of those incidents, involving Mr. Padgett, "on or after September 15, 2014." The following day, records custodian Sgt. Shannon Coomes responded: "Currently the [requested] records are part of an active investigation led by the Kentucky State Police. The Daviess County Detention Center has been instructed to not release any of these records while the investigation is ongoing. At this time, any questions about these records may be directed to the Kentucky State Police."
Ms. Blackburn initiated this appeal on October 1, 2014, pointing out that "[t]he denial letter states no exemption set forth in KRS 61.872 or 61.878." On October 13, 2014, Sgt. Coomes responded, stating as follows:
The records requested by Ms. Blackburn have not been provided pursuant to KRS 61.878(1)(h) -- Records of law enforcement 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 premature release of information to be used in a prospective law enforcement action or administrative adjudication.
The records are currently part of an active investigation led by the Kentucky State Police. The video record requested is a key piece of evidence in the Kentucky State Police investigation. The Daviess County Detention Center has been instructed to not release any of these records while the investigation is ongoing.
The Detention Center thus cites KRS 61.878(1)(h) on appeal although it failed to do so in its initial response. KRS 61.880(1) requires an agency denial to "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.) The failure to cite KRS 61.878(1)(h) in the original denial was therefore a procedural violation.
Nonetheless, we find that the exception applies. KRS 61.878(1)(h) excludes from public inspection:
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 the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In 14-ORD-039, we opined that the current status of a criminal prosecution could be a factor affecting the threshold for a showing of harm to the agency under KRS 61.878(1)(h) as interpreted in
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). Thus, where a prosecution was in its early stages and no evidence had yet been presented, we found that the "unpredictable effect of the public release of witnesses' 911 recordings upon the fairness of the trial constitute[d] more than a speculative risk of harm." 14-ORD-039.
The adequacy of a showing of harm under KRS 61.878(1)(h) is factually dependent and therefore must be narrowly determined on the facts of the individual case. Id . In this case, since the recent occurrences in the Detention Center are still being investigated by the state police, the enforcement action is at a very early stage and the effect of public release of the relevant jail records upon the fairness of a future trial is as unpredictable as in 14-ORD-039. If a crime was committed in the Detention Center, any of the records in question may become evidence in a criminal trial.
Given the reported request of the Kentucky State Police that the records not be disclosed, we believe this is sufficient under the rationale of 14-ORD-039 to establish the harm that would likely result from disclosure of these investigative documents. Cf . 01-ORD-31 (coroner may withhold autopsy report under KRS 61.878(1)(h) when criminal prosecution is in progress). Although it has not been specified what criminal offense Mr. Padgett is suspected of committing, it is sufficiently clear that these records were "compiled in the process of detecting and investigating statutory or regulatory violations." The remaining question, therefore, is whether the documents are "records of law enforcement agencies or agencies involved in administrative adjudication. "
In this case, we need not make the determination whether the Daviess County Detention Center is an agency "involved in administrative adjudication, " as it argues, because the ongoing investigation of the incident by the KSP is dispositive as to the application of KRS 61.878(1)(h). The Attorney General has recognized in prior decisions that this exception is properly invoked when another agency having concurrent jurisdiction is conducting an ongoing investigation of the same matter. ( See 09-ORD-127 and authorities cited therein.) Such is clearly the case in this instance, given the current investigation by the Kentucky State Police. Therefore, the investigative documents in Mr. Padgett's case may properly be withheld from public disclosure at this time.
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.