Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Reverend Russell, of The National Investigative Report ("NIR"), initiated this appeal by letter dated August 1, 2016, challenging the denial by the Lakeside Park - Crestview Hills Police Authority ("Authority") of his June 30, 2016, request for "[a]ny and all arrest reports on Kyle Patrick Dever" as well as "any documents related to Kyle P. Dever." 1 By letter dated July 2, 2016, Colonel Christopher J. Schutte denied Rev. Russell's request "pursuant to KRS 17.150 which exempts from disclosure records of law enforcement agencies where there is a prospective enforcement action, or where there remains the possibility of further judicial proceedings." Col. Schutte further advised that the Authority's "records have been turned over to the Kenton County [Commonwealth's] Attorney as part of the criminal prosecution. You should direct any further requests for these law enforcement records to the [Commonwealth's] Attorney's [O]ffice." Rev. Russell clarified on appeal that he was requesting access to "any arrest papers, any photos [taken] of Kyle Dever," and "any reports that [the Authority] filled out on his arrest. I do not need his statement if he did one."
On appeal the Authority confirmed that Mr. Dever was arrested on March 7, 2016, and his criminal prosecution was ongoing in Commonwealth v. Dever , Case No. 16-CR-00319, Kenton Circuit Court, when Rev. Russell's request was received. Having quoted the language of KRS 61.878(1)(l) and KRS 17.150(2), 2 Ms. Stewart maintained that 14-ORD-154 (In re: Meggan Smith/Lakeside Park-Crestview Hills Police Authority, rendered July 25, 2014) validates the Authority's position regarding application of KRS 17.150(2) on the facts presented here. Ms. Stewart acknowledged that a public agency must justify its refusal with specificity per KRS 17.150(3) but argued that the Authority had satisfied this requirement, quoting an excerpt from 14-ORD-154. Based upon the reasoning found in that Open Records Decision, this office must affirm the Authority's denial except as to any responsive Incident Report (or equivalent thereof), disclosure of which is required under existing legal authority, though certain redactions are permissible.
KRS 17.150(2) provides that "[i]ntelligence 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." In analyzing the underlying purpose of KRS 17.150(2) and its "companion statute," KRS 61.878(1)(h), this office has observed that "[i]nvestigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of the contents to the targets of investigation, which could thwart law enforcement efforts." OAG 83-123, p. 2 citing Privacy: Personal Data and the Law , National Association of Attorneys General (1976). This office later determined that the term "investigative report" is "broad enough to extend to laboratory, forensic, and other reports generated in the course of an investigation." 05-ORD-246, p. 2.
However, the Attorney General recently had occasion to reaffirm "'that police incident reports, as opposed to investigative files, are not generally exempt from disclosure. 09-ORD-205; 05-ORD-003.'" 16-ORD-085, p. 3; 04-ORD-188; 08-ORD-105. To the contrary, "'[s]ome records found in, or appended to, an investigative file, such as a uniform offense report, or incident report, do not enjoy absolute protection under . . . KRS 17.150(2) while an investigation is proceeding or a case is otherwise open.'" Id., quoting 05-ORD-211, n. 3. "If a police department feels it necessary to withhold certain items from public inspection in order to protect a police officer or an informant," the Attorney General concluded, "it may do so under KRS 17.150 but the burden is upon the custodian to justify the refusal with specificity. KRS 17.150(3)." 16-ORD-085, p. 3(citation omitted). See Kentucky New Era v. City of Hopkinsville, 415 S.W.3d 76, 83 (Ky. 2013)(reaffirming that ORA forbids "blanket" denials but characterizing redaction policy of city as "categorical" and thus affirming its withholding of contact information, social security numbers, driver's license numbers, etc . of victims, witnesses, and uncharged suspects appearing in police department's arrest and incident reports); Cape Publications v. City of Louisville, 147 S.W.3d 731, 733, 735 (Ky. App. 2003)(following 02-ORD-36 in holding that "police incident reports are matters of public interest and are public records . . . [that] the public should be allowed to scrutinize," but permitting redaction per KRS 61.878(1)(a) of names, addresses, and other identifying information relating to victims of sexual offenses who "share a substantial privacy interest in the nondisclosure of their identities . . . ."); see also 11-ORD-146; 14-ORD-039. Consistent with the foregoing, the Authority is entitled to make necessary redactions per KRS 61.878(4), but must release the remainder of the subject Incident Report. However, existing legal authority construing KRS 17.150(2) validates the Authority's denial regarding investigative documents responsive to Rev. Russell's request.
As indicated, the analysis contained in 14-ORD-154 is otherwise controlling on these facts. In that case, this office was asked to determine whether the Authority violated the Open Records Act in denying a request for specified categories of investigative records pertaining to an individual submitted by that individual's attorney in the context of a motion to set aside a conviction due to ineffective assistance of counsel. Having quoted the language of KRS 61.878(1)(h), and summarized the analysis found in City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Attorney General observed that KRS 17.150(2)(d) does not require a showing of harm, but KRS 17.150(3) does provide that, "[w]hen a demand for the inspection of the records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity. " 14-ORD-154, p. 3. Like KRS 61.878(1)(h), this provision further mandates that exemptions codified at KRS 17.150(2) "shall not be used by the custodian of records to delay or impede the exercise of rights granted by this section." Id.
This office concluded that no showing of harm was demonstrated to justify the agency's invocation of KRS 61.878(1)(h) relative to most of the requested investigative records in that case. However, the Attorney General went on to find that its denial was appropriate under KRS 17.150, reasoning as follows:
Here, the [Authority explains] that there is an ongoing law enforcement action, under RCr 11.42. These actions are prospective actions under both Skaggs and Ft. Thomas . While evidence of a prospective action is insufficient to demonstrate harm under the Ft. Thomas case, that case did not address KRS 17.150. Rather, Ft. Thomas addressed the explicit showing of harm requirement in KRS 61.878(l)[(h)]. As KRS 17.150 does not include such a showing of harm, the canon of statutory interpretation known as the plain meaning rule requires the statute be read without a harm element. [Citation omitted.] Accordingly, 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. KRS 17.150, therefore, makes the records at issue exempt from disclosure until there is no prospective law enforcement action, so long as the agency specifies what that action is or could be. Having specified the nature of the prospective law enforcement action here, the agency properly withheld the responsive records under KRS 17.150.
14-ORD-154, pp. 4-5; 14-ORD-228. The Authority confirmed here, both initially and on appeal, that responsive documents were part of the ongoing criminal prosecution identified above when Rev. Russell's request was received. Its response, while not a model of specificity, provided a "specific reason" for withholding the records, and was therefore sufficient under 14-ORD-154 to justify denial of the request on the basis of KRS 17.150 with the noted exception. 16-ORD-087 (agency "provided at least some specificity" in justifying its denial on the basis of KRS 17.150).
Either party may appeal this decision may appeal by initiating action in the appropriate circuit court per KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General must 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 Rev. Russell alleged that NIR did not receive the Authority's faxed response until July 30, 2016. In the interim Rev. Russell had submitted a nearly identical request by letter dated July 20, 2016. Upon receiving notification of Rev. Russell's August 3, 2016, appeal from this office, Mary Ann Stewart, counsel for the Authority, responded on its behalf, attaching the August 15, 2016, affidavit of Colonel Christopher J. Schutte. Col. Schutte attested that "[b]ecause the Authority could not ascertain the requestor's name or verify the address," despite having performed an internet search, on July 5, 2016, Col. Schutte faxed the Authority's response to Rev. Russell's June 30, 2016, request to the fax number listed on that request, 1-888-486-1248.
2 KRS 61.878(1) excludes from disclosure "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." In relevant part, KRS 17.150 provides:
(2) 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:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in the records to be used in a prospective law enforcement action.