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 Kentucky State Police (KSP) provided sufficient specificity to justify refusal of inspection pursuant to KRS 17.150(2)(d) and 17.150(3) for investigative records where a decision to prosecute had not yet been made. We find that KSP provided sufficient specificity in its initial response to justify its refusal to provide the records.
By letter dated September 7, 2016, to the KSP, Carol Risk requested records 1 regarding an investigation of Dennis Jones. On September 16, 2016 2, Emily Perkins responded on behalf of KSP that the requested "information is part of an investigation that is still open pending prosecution. . . accordingly your request is denied pursuant to KRS 17.150(2)(d) and 61.878(1)(h), which state that records of law enforcement agencies are exempt from disclosure through the provisions of the Open Records Act until such time as prosecution is completed or declined. Premature release of those records in a public forum could result in prejudice to the potential witnesses and has the potential to adversely color witnesses [sic] recollection of the events." Ms. Risk then appealed KSP's refusal to release the records. Ms. Perkins responded on October 20, 2016, again noting that there had yet been no decision made as to whether the case will be presented to a grand jury and that all investigative documents, as well as physical evidence, must be preserved so that it may be used if there are future criminal proceedings. Ms. Perkins further elaborated that it may be necessary to interview or re-interview witnesses and some of those persons are potential witnesses before a grand jury. She further argued that KSP is not required to show a "concrete risk of harm" as discussed in the case of
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), because the holding in that case does not apply to investigations in which no determination has been made regarding criminal prosecution. 3 Ms. Perkins claimed that KSP had provided the specificity required under KRS 17.150(3) to justify exemption of the records from release.
This office recently addressed a similar situation, in 16-ORD-087, where KSP replied almost identically to the initial request for investigative files and on appeal. As the facts of the two appeals are so similar, we cite with approval the holding in that decision:
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 response. However, KSP did subsequently state the harm in its response to this 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. " KSP is correct that "there is no requirement of a showing of harm to invoke KRS 17.150(2)." 10-ORD-094. Instead, 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. However, KSP did provide at least some specificity in its response to this appeal. Accordingly, we find that KSP initially violated the Open Records Act in failing to state the harm caused by release of the records or failing to justify its refusal with specificity, but subsequently cured those deficiencies on appeal.
In contrast to the initial response in 16-ORD-087, where KSP failed to state the harm that could result from the release of records and did not justify its refusal with specificity, in this appeal KSP did state in its initial response to Ms. Risk that: "Premature release of those records in a public forum could result in prejudice to the potential witnesses and has the potential to adversely color witnesses [sic] recollection of the events." KSP thus satisfied, although minimally, the specificity required under KRS 17.150(3) to support its refusal to provide the records. Accordingly, we find that KSP provided sufficient specificity for nondisclosure under KRS 17.150(3), and did not violate the Open Records Act in its response to Ms. Risk that explained the reasons for denying the request.
Either party may appeal this decision 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 proceeding.
Footnotes
Footnotes
1 Ms. Risk requested: "A complete copy of the case file including without limitation all pictures, cruiser camera videos, lapel camera videos, reports notes, witness interview videos and notes, witness statements, investigatory notes and reports, all radio traffic related to the investigation of Dennis Jones, summary call report related to the investigation of Dennis Jones, any computer aided dispatch records related to the investigation of Dennis Jones, and all other information held by your office regarding Dennis Jones . . ."
2 KSP's response to Ms. Risk noted that her request was received on September 13, 2016, and thus KSP's response was timely, in accordance with the three-day response time required by KRS 61.880(1).
3 KSP attempts to distinguish City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013) on the grounds "that the holding in that case does not apply to investigations in which no determination has been made regarding criminal prosecution." KSP cites no authorities in support of this distinction, and we find none in Fort Thomas or elsewhere.