Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Police Department violated the Open Records Act in responding to an extensive and complicated Open Records request from attorney Sam Aguiar.
On August 15, 2016, Sam Aguiar, a private attorney, sent an Open Records request via email to the Louisville Metro Police Department ("LMPD," or "the Department") regarding an officer-involved shooting that occurred on August 8, 2016. The email included thirty-seven separate different records 1 and requests for information. Many of the requests involved multiple individuals or types of records, and implicated several other agencies. The Department responded on August 18, 2016 2, and fully responded to three 3 requests for information; requested up to and including September 19, 2016, to respond to eighteen of the records requests; invoked KRS 61.878(1)(h) and KRS 17.150(2) to exempt twelve of the requests; and directed Mr. Aguiar to the proper custodial agency for three of the requests. In its August 18, 2016, response, LMPD did not address the last item in Mr. Aguiar's request (for personnel and investigative files of several LMPD officers). On August 25, 2016, Mr. Aguiar sent another Open Records request 4 for audio, video, and body cam footage regarding prior charges against the individual who was shot. On September 19, 2016, LMPD provided records relating to the requests for personnel files (Items 3 and 5) but denied those portions of the personnel files that were performance evaluation records. LMPD cited to KRS 61.878(1)(a) as the basis for exempting the personnel evaluation records.
Mr. Aguiar appealed LMPD's response by letter dated September 27, 2016. Mr. Aguiar contested LMPD's refusal to provide the twelve records that were withheld pursuant to KRS 61.878(1)(h) and KRS 17.150(2); the records withheld pursuant to KRS 61.878(1)(a); and LMPD's failure to respond to the request for audio, video and body cam video from the prior charges against the individual who was shot. Mr. Aguiar also appealed LMPD's failure to respond to the bulk of the requests by its self-designated deadline of September 19, 2016.
On appeal, Paul Guagliardo, Assistant Jefferson County Attorney, responded on behalf of LMPD. In his response, Mr. Guagliardo included a letter dated September 30, 2016, to Mr. Aguiar, which addressed many of the requests. The response mentioned that the original request from Mr. Aguiar was the equivalent of at least 36 separate records requests which could implicate thousands of pages of records and hours of video that had to be identified, located and reviewed. He stated that the records custodians have no reasonable basis on which to predict exactly how long compliance with the request would take and that the records custodians make their most reasonable guess on how long it will take to respond. Mr. Guagliardo stated that LMPD had engaged in email correspondence 5 in which Mr. Aguiar had received some records and answers to follow-up questions he had posed. Mr. Guagliardo further explained LMPD's reliance on KRS 61.878(1)(h) in conjunction with KRS 17.150(2) for some of the records, and LMPD's reliance on KRS 61.878(1)(a) as the basis for withholding performance evaluations of police officers. Mr. Guagliardo's response letter included a September 30, 2016, letter from LMPD to Mr. Aguiar which also further explained the reasoning for withholding investigation records and performance evaluation records.
The September 30, 2016, letter from LMPD requested until October 31, 2016, to respond to six requests 6 and claimed that nine 7 records were exempt pursuant to KRS 61.878(1)(h) and KRS 17.150(2). The letter claimed that there were no responsive records to Item 15. Requests 7, 14, and 25 were items where exemption under KRS 17.150(2) was claimed in the August 18, 2016, letter, but were not mentioned in the September 30th letter from LMPD. 8
Records exempted under KRS 61.878(1)(h) and KRS 17.150(2) .
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. " 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. " 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.
In response to 12 of the 37 requests, LMPD stated, in its August 18, 2016, response: "Please be advised the investigation is pending and the records are exempt from release at this time, pursuant to KRS 61.878(1)(h) and KRS 17.150(2). Premature release of the record will jeopardize the integrity of the investigation." Mr. Aguiar's appeal is correct in stating that, LMPD's initial response did not explain why release of certain records posed a risk of harm to the investigation or potential prosecution. However, on appeal, Mr. Guagliardo provided his letter of October 14, 2016, with the attached letter of September 30, 2016, from LMPD. Both of those letters stated the risk of harm that could be caused to the investigation, and potential prosecution, if the requested records were produced. The LMPD letter stated:
Please be advised that this officer involved shooting investigation is pending and records were previously identified as exempt from the release at this time, pursuant to KRS 61.878(1)(h) and KRS 17.150(2). Premature release of those records in a public forum could result in prejudice to the potential witness and has the potential to adversely color witnesses' recollection of the events. The integrity of any criminal investigation, and the accuracy of its findings, are of critical importance to the Commonwealth and the subjects of the investigation in determining whether or not to file criminal charges; and if charges are filed, to the prosecution of this case. Release of these records would disclose information contained in the records to be used in a prospective law enforcement action, including further investigation by investigators, and the review and assessment of the evidence by prosecutors. Please see 14-ORD-145."
Mr. Guagliardo's letter further explained that witnesses' recollection could be tainted if they learned information regarding the investigation by release of the records and thus their testimony could be subject to challenge if the investigation leads to trial. Although the explanation for invoking the law enforcement exception was belatedly provided, we find that LMPD has sustained its burden of proof under City of Fort Thomas in articulating a factual basis for withholding the requested evidentiary records. 16-ORD-162.
Performance evaluation records exempted under KRS 61.878(1)(a) .
Mr. Aguiar also appeals the nondisclosure of certain portions of the personnel files of Officers Smith and Miller. KRS 61.880(1) states, in relevant part: "An 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. " In its responses to Mr. Aguiar, LMPD merely stated that the "performance evaluation records. . .are exempt from release pursuant to KRS 61.878(1)(a)." Although LMPD's refusal to provide the performance evaluations cited the specific exception, it failed to briefly explain how that exception applied to the records withheld.
In his letter of October 14, 2016, Mr. Guagliardo does provide some explanation of how KRS 61.878(1)(a) applies to the performance evaluation records by citing to Cape Publications v. City of Louisville, 191 S.W.3d 10 (Ky. App. 2006) and to 16-ORD-185. In 16-ORD-185, we stated:
In balancing the competing interests, we recall that the court in Cape Publications recognized two privacy interests involved in performance evaluations: the presence of "personal information" and the need for evaluators to "speak more frankly" about employees in an effort to improve performance. Id. On the other side, the public interest in disclosure which undergirds the Open Records Act is based on "the citizens' right to be informed as to what their government is doing." Zink v. Com., Dept. of Workers' Claims, Labor Cabinet, 902 S.W.2d 825, 829 (Ky. App. 1994).
In the instances where this office has found that personnel evaluations should be released, the public interest has been superior to the privacy interest. In 11-ORD-190, this office found that, where a where a public library director's fiscal management was publicly questioned by a city councilman and the council reduced the library's funding by $ 100,000, with the library board imposing a written list of job expectations for the director, followed by a performance evaluation, we found that these facts "elevate[d] the public's right to scrutinize how she was evaluated in her supervisory role" and warranted disclosure of the evaluation to a newspaper. 11-ORD-190. In 13-ORD-063, we found that the balance of interests did not favor disclosure of the evaluations of two former majors with the Hopkinsville Police Department who had previously filed civil suits alleging discrimination in promotions and had themselves been sued civilly by a prisoner. In the current instance, the police officers in question have not been charged with a crime or violation of LMPD procedures. In view of the circumstances of this case, we find that disclosure of the police officers' performance evaluations would not significantly further the purpose of the Open Records Act and no overriding public interest has been shown that would override the recognized privacy interests.
Late Response to Open Records Request .
KRS 61.872(5) requires that, "[i]f the public record is in active use, in storage or not otherwise available, the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three (3) days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and earliest date on which the public record will be available for inspection. " (Emphasis added). Although LMPD's first response of August 18, 2016, was timely, that letter delayed further responses to eighteen requests by stating, "Due to the scope of the request, please allow up to and including September 19, 2016 to respond. If any records become available any earlier, I will notify you." This response to eighteen requests was not a detailed explanation for further delay, as required by KRS 61.872(5). The delay in providing records was further exacerbated when, on September 19th, only some of the records were provided and no explanation was given for not providing all nonexempt records at that time. 9 LMPD set forth yet another delay in its September 30th letter when it stated, "Due to the scope of the request, please allow up to and including October 31, 2016 to obtain any records and prepare them for release pursuant to KRS 61.878. If any records become available any earlier, I will notify you." This further delay of yet another month for six of the requests did not provide the detailed explanation required by KRS 61.872(5).
"The burden on the agency to respond within three working days is, not infrequently, an onerous one. Nevertheless, the only exceptions to this general rule are found at KRS 61.872(4) and (5)," 02-ORD-165, p. 3. Only in Mr. Guagliardo's response of October 14, 2016, to the Open Records appeal, is there any reference as to why record production was delayed, and that explanation is very general, not specific as required by KRS 61.872(5). Nor is there an explanation in Mr. Guagliardo's letter of why six requests were being delayed until October 31, 2016, a delay of 74 days past the initial three-day response period, and 42 days beyond LMPD's own self-imposed deadline of September 19, 2016. To this extent, LMPD violated KRS 61.872(5). LMPD should be guided in responding to future requests by the fundamental principle that the procedural requirements of the Open Records Act "are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request." 93-ORD-134, p. 9.
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 must be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
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