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 1) failing to respond to an improperly submitted request; 2) failing to state the harm caused by release of law enforcement records, 3) failing to state the reasons for withholding law enforcement records with specificity, 4) withholding 911 calls, and 5) withholding police dispatch logs. We find that KSP did not violate the Open Records Act in not responding to an improperly submitted request. KSP procedurally violated the Open Records Act in failing to state the harm caused by release of law enforcement records, and by failing to state the reasons for withholding them with specificity, although KSP subsequently cured those deficiencies on appeal. The record is insufficient to conclude that KSP violated the Open Records Act in withholding 911 calls. KSP violated the Open Records Act in withholding police dispatch logs.
The Cincinnati Enquirer ("the Enquirer") submitted an open records request to KSP, addressed to Sgt. Danny Caudill or Lt. Rick Saint-Blanchard, on Dec. 23, 2015. The Enquirer requested:
the following public records regarding the Dec. 22 shooting in Ludlow that resulted in an officer wounded and a man dead at the Riverside Marketplace, located at 106 Elm St., Ludlow, Ky.
KSP did not respond to that request. The Enquirer submitted a second records request to KSP on Jan. 14, 2016, which was addressed to Emily Perkins. The second request sought "the following public records regarding the Dec. 22 shooting in Ludlow involving Ludlow Police Officer Sam Hodge and Ludlow resident Charles Reynolds. The incident resulted in Hodge being wounded and Reynolds being killed." The request asked for all of the items in the first request, plus "the incident report" and "calls and runs to Charles Reynolds address."
KSP responded to the second request on Jan. 15, 2016, stating:
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 initial 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.
The Enquirer initiated this appeal on Jan. 27, 2016 on the grounds that:
(1) KSP failed to respond to the Enquirer's initial records request; (2) KSP's response to the Enquirer's second request failed to set forth the concrete harm required under KRS 61.878(1)(h) that would occur by a release of the records requested; and (3) KSP has not met its burden of stating with specificity how KRS 17.150 exempts the records requested, and improperly withheld nonexempt records.
The Enquirer further stated that "all records of the Ludlow police being called or dispatched to Charles Reynolds' address were also improperly withheld under KRS 17.150(2) on the grounds that "police radio transmission tapes and dispatch logs are, in general, open for public inspection, " quoting 98-ORD-104.
KSP responded to the appeal on Feb. 11, 2016. Regarding its failure to respond to the first request, KSP argued that "the first 'request' was submitted via e-mail to a Public Affairs Officer at one of its operation Posts. The KSP does require signed written requests be submitted by hand delivery, US mail, or fax in accordance with KRS 61.878(2). Therefore, the first request was not properly submitted . . . ." In response to the other grounds for the Enquirer's appeal, KSP stated:
The records requested pertain to a police investigation that is still open and pending. No decision yet has been made by the Commonwealth's Attorney as to whether this case will be presented to the grand jury or when. It may be necessary to interview or re-interview witnesses and some of those persons are potential witnesses before the grand jury. Premature release of those records to a newspaper could result in prejudice to the potential witness and has the potential to adversely color a witnesses recollection of the events.
Regarding KSP's failure to respond to the first request, 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." KRS 61.872(2) provides that "the official custodian may require written application, signed by the applicant and with his name printed legibly on the application, describing the records to be inspected. The application shall be hand delivered, mailed, or sent via facsimile to the public agency. " It is unclear from the attached request whether it was mailed or sent by email, and although it contains a signature block, it does not contain an original signature. "A signature may be required in order to trigger the requirements of KRS 61.880(1)." 10-ORD-106. Further, if the request was emailed, "e-mail is not a permissible method of delivery under the Open Records Act. " 09-ORD-190. "'Unless the parties (meaning the requester and the public agency) enter into an express agreement, or consent by a clear course of conduct, to transact their open records business by email,' an emailed request need not be honored." 07-ORD-033. However, "public agencies are encouraged to immediately notify requesters utilizing e-mail that the agency does not accept e-mailed open records requests and that the requester should submit the request by hand delivery, U.S. Mail, or facsimile. " 14-ORD-050. Although it would have been preferred if KSP had responded to the Enquirer's first request by notifying the Enquirer that it did not accept emailed open records requests, we do not find that KSP violated the Open Records Act in not responding to an improperly submitted request.
Regarding the substance of the appeal, 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 in its initial response, although it subsequently specified the harm on appeal. In failing to state the harm caused by the release of the records, KSP procedurally violated the Open Records Act, although it subsequently cured that violation on appeal.
Similarly, 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 initial response, although it subsequently stated the reasons with specificity on appeal. In failing to state the reasons for refusing inspection with specificity, KSP procedurally violated the Open Records Act, although it subsequently cured that violation on appeal.
Regarding the 911 calls, KSP does not specifically address them in its response to this appeal. 1 In 14-ORD-139, this office stated that "we have never held that 911 tapes may be categorically withheld under KRS 61.878(1)(h), but rather have required a showing of harm on a case-by-case basis." In that decision, we upheld a denial of a request for 911 tapes on the grounds that the agency asserted that "releasing the 911 tapes 'would taint any jury pool,'" and "concern about 'unwanted contact of the witnesses by the media, lawyers or others that may affect the evidence prior to trial.'" Id. In this instance, KSP claims the harms of "prejudice to potential witnesses" and "the potential to adversely color a witness recollection of the events." Although it would have been preferable if KSP had specifically asserted those harms in relation to the 911 calls, the record before us is insufficient to conclude that KSP violated the Open Records Act in withholding them.
Regarding the "calls and runs to Charles Reynolds address," KSP also does not specifically address this request in its response to this appeal. "Police dispatch logs are generally open to public inspection. " 07-ORD-167. KSP "fails to articulate how disclosure of these 'seriatim notations, commonly of a summary character, of police dispatches and disposition codes'" would harm KSP "'by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. '" Id. KSP does not attempt to address how release of the dispatch logs, which contain only summary notations of dispatches, would compromise the investigation by releasing information. Accordingly, in not providing dispatch logs for calls to Charles Reynolds' house, KSP violated the Open Records Act.
In summary, KSP did not violate the Open Records Act by failing to respond to an improperly submitted request. KSP procedurally violated the Open Records Act by failing to state the harm caused by the release of law enforcement records or the reasons for withholding them with specificity, although it subsequently cured those deficiencies on appeal. The record is insufficient to conclude that KSP violated the Open Records Act in withholding 911 calls. KSP violated the Open Records Act in not providing dispatch logs for any visits to Charles Reynolds' house.
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 It is unclear from KSP's response whether it is withholding the 911 calls based on KRS 61.878(1)(h) or KRS 17.150(2). The Enquirer correctly notes that "911 calls, even if they are maintained by a criminal justice agency, 'cannot properly be characterized as intelligence or investigative reports' and therefore KRS 17.150(2) 'is facially inapplicable' to them." 09-ORD-227. We therefore analyze the issue under KRS 61.878(1)(h).