Opinion
Opinion By: Andy Beshear,Attorney General;Matt James,Assistant Attorney General
Open Records Decision
The questions presented in this appeal are whether the Kentucky State Police ("KSP") violated the Open Records Act in failing to justify the harm that would result from the release of records from an investigative file, and in failing to justify the refusal with specificity. We find that KSP violated the Open Records Act in failing to justify the harm that would result from the release of records from an investigative file, and in failing to justify the refusal with specificity.
James Hightower submitted an open records request to KSP that was dated Feb. 2, 2016. Hightower stated that "on October 25th -- 2014 I was assaulted at Eastern Kentucky Correctional Complex. A Kentucky State Police David Zimmerman investigated this incident. I want one complete copy of that investigation to include pictures. " KSP did not respond to that request. On Feb. 29, 2016, Hightower initiated this appeal of "the Open Records being ignored and not answered."
KSP responded to the appeal on March 7, 2016, stating that "the request was received . . . on February 23, 2016, and a response was issued on February 26, 2016, providing the initial KyIBRS report and denying the remaining records in accordance with KRS 17.150(2)(d) because the investigation is ongoing. " 1 KSP further requested "that if the appeal is not withdrawn it be dismissed as moot, " and alternatively requested "an opinion affirming the response of the KSP in accordance with KRS 17.150(2)(d), 61.878(1)(h), which state that records of law enforcement agencies shall remain exempt from disclosure until such time as prosecution is completed or declined." Hightower replied to KSP's response on Mar. 8, 2016, in which he stated:
I waited until approximately the 22th of February twenty (20) days after the request was mailed. And had not received a response from the Kentucky State Police so I Appealed the Open Record Request to the Attorney General's Office for violation of Kentucky Revised Statute 61.880.
On Tuesday the 2nd of March 2016 I received a letter from the Kentucky State Police stating that my Open Records request was being denied pursuant to Kentucky Revised 17.150(2) and 61.878(1)(h) . . . .
. . . .
Therefore I am appealing the open Record Request asking that I be given all the requested materials. 2, 3
KRS 61.880(1) provides that "each public agency, upon any request for records . . ., shall determine within three (3) days . . . after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision." The copy of the request attached to Hightower's appeal is dated Feb. 2, 2016. KSP claims to have received the request on Feb. 23, 2016, 4 and responded on Feb. 26, 2016. "This office has consistently acknowledged the inability to conclusively resolve a factual dispute concerning actual delivery and receipt of a request." 14-ORD-099. Therefore, we cannot resolve whether KSP timely received and responded to the request in this forum.
40 KAR 1:030 § 6 provides that "if the requested documents are made available to the complaining party after a complaint is made, the Attorney General shall decline to issue a decision in the matter." KSP argues that since it has provided a redacted version of the KYIBRS report, that the appeal is now moot. However, "this office is only permitted to reach that conclusion if the agency provides the requester with access to all of the records being sought after his appeal has been filed." 08-ORD-187 n. 3. Hightower requested all documents pertaining to the investigation of the assault against him. Accordingly, we do not find that Hightower's request is now moot.
KSP denied access to documents in the investigative file other than the KYIBRS report under KRS 61.878(1)(h) and 17.150(2)(d) on the grounds that "the investigation is active and ongoing. " KRS 61.878(1)(h) exempts from the Open Records Act "records 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. " In
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the court held that "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." Id. at 851. KSP did not make any reference to the harm caused by the release of the records either in its response to the request or to the appeal. KRS 17.150(2) provides that "intelligence and investigative reports maintained by criminal justice agencies . . . . 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. However, KRS 17.150(3) provides that "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. " KSP did not state the reasons to justify the refusal of inspection with specificity in its response to the request or to the appeal. Accordingly, in failing to justify the harm that would result from the release of the records, and in failing to justify the refusal with specificity, KSP violated 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. 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 proceedings.
Footnotes
Footnotes
1 KSP attached a response dated Feb. 26, 2016 in which it stated that "this information is part of an investigation that is still open; accordingly, your request is denied pursuant to KRS 17.150(2) and 61.878(1)(h), which exempt law enforcement investigations from disclosure until such time as prosecution is declined or completed. However, a copy of the KYIBRS report, before the narrative portion begins, is subject to disclosure regardless of the status of the investigation . . . . Therefore, a copy of that report is enclosed. Certain information (DOB, SSN, address, phone numbers, etc.) contained in this report has been redacted pursuant to KRS 61.878(1)(a) as disclosure of this information would constitute a clearly unwarranted invasion of personal privacy.
2 Hightower additionally expressed concerns over whether Mr. Rostron, his alleged assaulter, would be prosecuted. Such issues are beyond the scope of an open records appeal.
3 Watson attached photographs of injuries to himself and Mr. Rostron, his alleged assaulter, and an Extraordinary Occurrence Report from Eastern Kentucky Correctional Complex detailing an altercation occurring on Oct. 25, 2014 involving Hightower, Rostron and others, a letter to Commonwealth Attorney David B. Ison requesting that charges be filed regarding the incident, and a criminal complaint form filled out by Hightower.
4 The copy of the request provided by KSP has the original date scribbled out and the date "2-2-16" written above it.