Opinion
Opinion By: Andy Beshear,Attorney General;James M. Herrick,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Carroll County Jailer violated the Open Records Act in denying Crystal Emberton's April 12, 2016, request "to inspect or obtain public records/ video records/evidence that depict an incident that occurred in the lobby of the Carroll County Detention Center on the morning of Tusday, April 12, 2016 between the hours of 10-11 AM." For the reasons stated below, we find that the Jailer violated the Act.
On April 15, 2016, Carroll County Jailer Michael W. Humphrey informed Ms. Emberton that a copy of the video would cost $ 25.00 plus $ 5.80 shipping and handling. He also stated: "If you are in need of this tape for legal action, you are more than welcome to follow step 1 of this letter to retrieve the CD. If you are wanting to use this CD for social media you will need to do what you need to because I will refuse your request."
Ms. Emberton paid the cost of $ 30.80 on April 21, 2016, but never received the record nor any further reply from Mr. Humphrey. Her appeal was received in this office on June 6, 2016. In an undated response to the appeal, Mr. Humphrey states in pertinent part:
I wrote to her and advised if there was any legal need of this video I would be more than glad to provide to a lawyer and or investigating agency with a copy but if used for social media I would not.
Under the open records act Crystal Emberton did not state what the purpose or intended use of such record was for.
Exemptions: Records relating to law enforcement, as a Peace Officer and under the Carroll Co. Detention Center I feel we fall under the law enforcement exemption. If not every time the public and or other agencies disagree with me and or my staff reference the jail policy & procedures, and uses the open records act just for personal use and social media we will be bombarded with open records request [ sic ].
(Numbering omitted.) We find this an inadequate justification for withholding the video requested and paid for by Ms. Emberton.
With regard to the "law enforcement exemption, " asserted for the first time on appeal, Mr. Humphrey has neither cited the law nor explained its application to the record requested. KRS 61.880(1) requires that "[a]n 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. " Furthermore, "[t]he burden of proof in sustaining the action [rests] with the agency." KRS 61.880(2)(c).
The so-called law enforcement exemption, which is contained in KRS 61.878(1)(h), permits nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication 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 or administrative adjudication. 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; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action. The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
Assuming for the moment that the Carroll County Jailer and/or the Carroll County Detention Center is a law enforcement agency, Mr. Humphrey has still failed to establish that the record in question was "compiled in the process of detecting and investigating statutory or regulatory violations." Moreover, there is the requirement of demonstrating that disclosure would harm the agency.
In
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Supreme Court of Kentucky addressed in detail the "law enforcement exception" under KRS 61.878(1)(h). The Court held that, unlike the investigation and litigation files of Commonwealth's and county attorneys, investigative files of law enforcement agencies are not categorically exempt from disclosure. Rather, when a record pertains to a prospective law enforcement action,
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. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.
City of Fort Thomas, 406 S.W.3d at 851.
Noting that the public agency bears the burden of establishing the applicability of an exception to the requirement of disclosure, the Court stated:
[T]he court must hold the agency to its burden of proof by insisting that the agency make a sufficient factual showing--by affidavit; by oral testimony; 1 or, if necessary to preserve the exemption, by in camera production--to justify the exemption. The agency should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release to permit the requester to dispute the claim and the court to assess it.
Id. at 852. Thus, again assuming that the Carroll County Jailer and/or the Carroll County Detention Center is a law enforcement agency, a concrete, non-speculative risk of harm must be attributed to the release of the particular record. Since Mr. Humphrey has not done so, he has failed to meet his burden of proof under KRS 61.878(1)(h).
This leaves only Mr. Humphrey's objection that Ms. Emberton has not stated the purpose of her request. "It is a proposition of law as old as the law itself that '[t]he purpose for the inspection of public records and how the information obtained from public records will be used is not material under the Open Records Law.'" 08-ORD-080, n.2 (quoting OAG 79-275). Thus, "[a] public agency has no right to inquire as to the purpose for the inspection and copying of the record." OAG 82-234. Accordingly, "[a]n agency cannot require a requesting party to state his purpose in making a request, nor can it, as a matter of policy, allow inspection and copying of records for certain purposes and deny it for other purposes." OAG 91-129. Since the Carroll County Jailer has stated no lawful basis for withholding the video footage requested by Ms. Emberton, we find that his refusal to produce the record 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 proceeding.
Footnotes
Footnotes
1 Given the nature of the Attorney General's review process under KRS 61.880, oral testimony obviously would not be an option in an appeal pursuant to that section.