Opinion
Opinion By: Jack Conway, Attorney General; Benjamin Long, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the City of Erlanger violated the Open Records Act in denying Cincinnati Enquirer reporter Keith BieryGolick's April 17, 2015, request for "[a]ny 911 calls + police, fire and dispatch radio traffic for a run to 808 Main St., Elsmere around 4 a.m. Friday, April 17. Run was for suspicious activity. Also requesting dispatch printout from run (CAD or incident recall report)." For the reasons stated below, we find no violation of the Act.
Lieutenant Michael Jansing of the Erlanger Police Department responded on the city's behalf on April 20, 2015, stating as follows:
The Erlanger Emergency Communications Center possesses audio recorded 911 calls, audio recorded radio traffic of emergency responders, and electronically stored dispatch records/reports related to the incident you cited. Your open records request is denied pursuant to KRS 61.878(1)(L) and KRS 15.150(2)(d) [ sic ] 1 because the materials requested contain information that will [be] used in a prospective law enforcement action. Once the prosecution has completed or a decision not to prosecute has been made, the materials will become available for public inspection. If you still desire the materials at that time, please submit a new request.
The Kenton County Commonwealth's Attorney Office also maintains a copy of the requested records. You may be able to obtain the same materials faster by contacting the Commonwealth's Attorney who is responsible for the prosecution of all felony cases.
Attorney Lynda Hils Mathews appealed to the Attorney General on behalf of the newspaper; her appeal bearing the date April 24, 2015, was received in this office on June 15, 2015. She contends that "[p]resumably, the City was invoking KRS 61.787(1)(h) [ sic ] 2 by citing that the materials may be used in a prospective law enforcement action, " and argues that the city has not made the required showing of harm under KRS 61.878(1)(h) as interpreted in City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013).
The City responded to the appeal on June 22, 2015, with a brief letter from Jack S. Gatlin, who invokes KRS 17.150(2)(d) and attaches a letter addressed to Mr. Gatlin from Kenton County Commonwealth's Attorney Rob Sanders. Mr. Sanders' letter states as follows:
KRS 17.150(2)(d) eliminates the need for a police agency to rely upon KRS 61.878(1)(h) and supply all of the justification required by the three part test adopted by the Kentucky Supreme Court in the City of Fort Thomas v. Enquirer case. As the Kentucky Supreme Court itself has noted, the Court does not rule on issues not raised by silence. "Again, however, we are unwilling to read into Skaggs [v. Commonwealth, 844 S.W.2d 389 (Ky. 1992)] 3 implicit decisions on issues not before the Skaggs Court and not addressed by it." Of course, the burden falls upon the government agency to specify which statutory exemption that it relies upon. Erlanger Police invoked KRS 17.150(2)(d) and KRS 61.878(1)(L), not KRS 61.878(1)(h), thus the Ft. Thomas case is not applicable.
The need to protect reports evidence [ sic ] pre-trial is paramount to ensuring that both defendants and the Commonwealth of Kentucky receive a fair trial. Pre-trial release of witness names, witness statements, recordings, and police reports creates a number of threats to a fair trial, including but not limited to witness harassment and pre-trial publicity that could cause defendants to be unable to receive a fair trial in this jurisdiction. KRS 17.150(2)(d) exists to protect the integrity of the criminal justice process. I do not know why this statute was not argued in the Ft. Thomas case because the plain reading would have made short work of the entire dispute. Please recognize that your response in this matter is not limited to this case. If the City of Erlanger does not utilize the protection provided by KRS 17.150(2)(d) then they can expect to be inundated with requests like this in the future.
Mr. Sanders is correct that the City of Erlanger never invoked KRS 61.878(1)(h); nor did the city attempt to make a showing of harm as required by that provision. The city cited only KRS 17.150(2), which is incorporated by reference into the Open Records Act by operation of KRS 61.878(1)(l). In pertinent part, KRS 17.150(2) states:
Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection if prosecution is completed or a determination not to prosecute has been made. However, portions of the records may be withheld from inspection if the inspection would disclose:
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(d) Information contained in the records to be used in a prospective law enforcement action.
In 14-ORD-154, this office stated 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." According to that standard, the city did not err by failing to show the harm that would result from disclosure of particular records.
We note that the circumstances presented by this case would, in all probability, have justified the invocation of KRS 61.878(1)(h) if the city had attempted to make a showing of harm. The prosecution was, at best, at an incipient stage when the request for records was made on the same day the criminal incident occurred. In 14-ORD-139, we upheld the Lexington-Fayette Urban County Government's nondisclosure of 911 tapes when a murder case was still in the pretrial stage, for reasons similar to those articulated by Mr. Sanders in his letter to Mr. Gatlin. In any event, according to the rule expressed in 14-ORD-154, the City of Erlanger satisfied the requirements of KRS 17.150 by reciting the fact that the prosecution had not yet occurred. Therefore, we find no violation of 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.
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