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 Kentucky State Police ("KSP") properly withheld any documents containing requested photos based on the prospective law enforcement action exemptions in KRS 61.878(1)(h) and KRS 17.150(2)(d). We find that KSP did not meet its burden to demonstrate the harm that would result from the release of the records, under KRS 61.878(1)(h), but properly withheld records pertaining to a prospective law enforcement action, under KRS 17.150(2)(d).
Sarah Teague ("Teague") submitted an open records request to KSP on Aug. 20, 2014. Teague requested:
records that would show all mug shots, booking photos, or any other photos of Marvin Ray Dill, including dates. He was booked into Webster Co. Ky jail three times: 4/25/95, 4/28/95 and 5/24/95. . . . KSP post 16 should have a copy of his mug shot on file, as he was investigated as the only suspect in the 8/26/95 abduction of Heather Teague.
KSP responded on Aug. 25, 2014:
Please be advised that no mug shot or booking photographs pertaining to the arrests in Webster County were located in the mug shot files. . . . A request for a nonexistent record cannot be honored inasmuch as an agency cannot furnish access to a record that it does not have. . . .
Any photograph that may be in the investigation regarding the kidnapping of Heather Teague is part of an open and ongoing investigation and therefore is exempt from disclosure pursuant to KRS 61.878(1)(h) and 17.150(2) . . . . (emphasis added).
Teague initiated this appeal on September 3, 2014. Teague argued, "I asked for any mug shot or photo in KSP custody regardless of what file it came from. . . . KSP then declares that any photos that may be in the investigation are exempt. By this, KSP avoids acknowledging if they have possession of any photos." KSP responded on September 16, 2014. KSP argued:
Appellant was advised that there are no photos in existence in the agency's mug shot files. An agency cannot produce a record that does not exist. . . .
Appellant also inferred that there may be photographs of Marvin Dill contained within the investigation of the kidnapping of Heather Teague. However, the KSP did not feel it prudent to spend hours reviewing an open investigation . . . as any records that are part of the investigation are exempt from disclosure pursuant to KRS 17.150(2)(d) and 61.878(1)(h), as any records contained within the investigation relate to an prospective investigation in which prosecution has not been declined . . . .
. . . While it is undisputed that there has been considerable time between the date of the crime and the present date, as of this date prosecution has not been declined and the investigation remains active and on-going . (emphasis added).
KSP has stated it has no mug shot or booking photos of Marvin Dill in its mug shot files. "A public agency cannot produce nonexistent records or those which the agency does not possess." 11-ORD-069. Accordingly, KSP did not violate the Open Records Act in failing to turn over mug shots that it did not have.
However, Teague asked for any "photos, booking photos or any other photos of Marvin Ray Dill" in KSP's possession. KSP only searched its mug shot files, and did not search other files which may be likely to have photographs of Marvin Dill, on the grounds that the investigation into the abduction of Sarah Teague is still open and no decision has been made. Sarah Teague was abducted on August 26, 1995, and the investigation has now been open for over nineteen years. At issue is the application of the prospective law enforcement exemptions in KRS 61.878(1)(h) and KRS 17.150(2)(d).
KRS 61.878(1)(h) exempts from the application of the Open Records Act:
Records of law enforcement agencies . . . 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 . . . . 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 . . . .
KRS 17.150(2) provides that "portions of the records may be withheld from inspection if the inspection would disclose . . . (d) Information contained in the records to be used in a prospective law enforcement action. " "The legislature has placed the burden of proving that a record is exempt from disclosure on the agency asserting the exemption. "
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013). See also KRS 61.882(3) ("the burden of proof shall be on the public agency" ); KRS 17.150(3) ("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).
Regarding the exemption in KRS 61.878(1)(h), an agency is required "to show both that the allegedly exempt records pertain to a prospective enforcement action and that release of the records would harm the agency with respect to that action."
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013). KSP has not made any attempt to specify a prospective law enforcement action, nor demonstrated any harm that would result from the release of photos of Marvin Dill, or documents containing photos of Marvin Dill. His identity is already known, and KSP has not established that release of any photos would constitute a premature release of information. Accordingly, KSP has not met its burden to prove that the prospective law enforcement exemption in KRS 61.878(1)(h) applies to photos of Marvin Dill in its possession.
Regarding the exemption in KRS 17.150(2), we have recognized that it is distinct from the exemption in 61.878(1)(h) in that "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.
Here, the Agency specified that the requested records are "part of an open and ongoing investigation." They further explained that, "any records contained within the investigation relate to a prospective investigation in which prosecution has not been declined." Indeed, they reiterated, "prosecution has not been declined and the investigation remains active and on-going. " 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 KSP properly withheld responsive records in this matter. While KSP failed to demonstrate the harm required to withhold the records, under KRS 61.878(1)(h), KRS 17.150(3) permits KSP to withhold the records at issue. As the agency explained, this investigation is ongoing, prosecution has not been declined. 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 an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General should be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.