Request By:
Marvin T. Pennington, # 119935
Mark G. Barnard, Chief
Michael R. Sanner, Esq.
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 Lexington-Fayette Urban County Division of Police ("the Division") violated the Open Records Act in denying Marvin Pennington's November 12, 2014, request for records from his criminal case file. For the reasons stated below, we find that the Division failed to articulate a legal or factual basis for its denial as required by KRS 61.880(1).
Mr. Pennington's request, addressed to the Records Department of the Division, stated as follows:
I have a case file in the Police Department, case 95-CR-0086.
As the file 95-CR-0086 discusses me by name, I want to get a copy of all material in my case file.
I want a copy of all Criminal Complaints, Arrest Warrants, Any statements in the file, Any laboratory results in the file, Any Medical Reports in the file, Any correspondence with the Detective in the file, Any investigative notes in the file. I want a copy of everything.
(Emphasis omitted.) Having received no response, Mr. Pennington initiated an appeal to the Attorney General on January 8, 2015.
On January 26, 2015, Officer Aaron Kidd, Records Custodian, replied to Mr. Pennington, advising that his original request had not been received prior to the appeal and that Officer Kidd was attempting to locate the records. He further stated that he had "contacted the Fayette County Commonwealth's Attorneys [ sic ] Office to verify if you have an active appeal," and that he would update Mr. Pennington in five to seven business days. He concluded: "At the end of this process, all non-exempt documents will be made available for your inspection. " On January 28, 2015, Michael R. Sanner, Attorney Senior, responded to the appeal on behalf of the Division and confirmed the above, noting that the case must be retrieved from storage due to its age. 1
On February 3, 2015, Officer Kidd issued his final response to Mr. Pennington, as follows:
You[r] request is denied. The Fayette Circuit Court issued an order on April 10, 1995 which stated the following:
"IT IS HEREBY ORDERED BY THE COURT that the videotape of the in-camera hearing, the videotape introduced into evidence by the Commonwealth, and the Tape 1 (A & B copies) of this trial tape in the above styled case are HEREBY ORDERED SEALED."
This order was signed by the Honorable Mary C. Noble. I have attached a copy of the court order for your records. In an effort to obey the above order, I am unable to determine what, if any, that I could release without an order from the above court.
(Emphasis omitted.)
KRS 61.880(1) provides in part: "An agency 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.) The Division of Police has failed to state an applicable exception under KRS 61.878(1) or other law. Furthermore, the Division has failed to explain how a court order placing certain videotapes under seal can justify withholding items such as criminal complaints, arrest warrants, written statements, lab results, medical reports, correspondence, and investigative notes. Accordingly, we find the Division's disposition of Mr. Pennington's request to be in violation of KRS 61.880(1).
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.
Footnotes
Footnotes
1 Mr. Sanner also asked that we dismiss this appeal because the request was "now in the process of being answered." It is not our practice to dismiss an appeal under such circumstances once our jurisdiction has been properly invoked, unless the public agency has made the appeal moot under 40 KAR 1:030, Section 6, by granting access to the records. Mr. Sanner was notified on February 19, 2015, that this office would be issuing a decision in this matter.