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 Kentucky State Police ("KSP") violated the Open Records Act in its disposition of Sarah Teague's May 25, 2016, request for certain records relating to the 1995 abduction of Heather Teague. For the reasons stated below, we find no violation of the Act.
Ms. Teague's May 25 letter to the KSP custodian of records read as follows:
I am making an Open Records Request for all records of the 911 call or any call made by Tim Walthall of Newburgh, Indiana on or about August 26, 1995 reporting the witnessing of the abduction of Heather Danyelle Teague from a beach on the Kentucky side of the Ohio River.
Along with the recording or recordings, please include the dates and times and any and all records showing the chain of custody and the names of those involved in handling these records.
Please also include the names of those present at the meeting at KSP Post 16 in about 2008 when my daughter Holly, my lawyer Chip and I were finally allowed to listen to the 911 recording.
Please also include all mugshot records of suspect, Marvin "Marty" Dill, from Webster County and Henderson Jail in 1995.
On May 26, 2016, records custodian Emily Perkins advised that "no mug shot or booking photographs pertaining to Marvin Dill were located in the mug shot files." She further stated that audio recordings or related documentation are "part of an open, active, and ongoing investigation and therefore . . . exempt from disclosure pursuant to KRS 61.878(1)(h) and 17.150(2)(d)," and:
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 recollections of the events. Furthermore, public disclosure of such records could result in bias to the potential jury pool.
Ms. Teague initiated this appeal on August 29, 2016, arguing that the KSP might possess mug shot records of Marvin Dill outside its mug shot file and that the chain of custody of the 911 call was relevant to her belief that there were two different versions of the recording. Ms. Teague also advised that she had obtained mug shot records of Mr. Dill from the Evansville Police Department and the Webster County Jail website.
On September 13, 2016, Ms. Perkins responded to the appeal, pointing out that "the Kentucky State Police does not generally possess or maintain records generated by other police agencies." This, however, does not conclusively answer the question of whether any mug shot records of Mr. Dill exist in the KSP's investigative file. It is true that a public agency cannot afford a requester access to a record that it does not have or that does not exist, 99-ORD-98, and the agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In this case, however, the KSP has not unambiguously stated that it has no mug shot records in its investigative file. Cf . 14-ORD-228 (similar response to almost identical request). This matter, therefore, along with the denial of any 911 records, turns upon the status of the investigation as a whole.
Ms. Perkins argues:
Any and all records that may be contained within the investigation regarding the disappearance of Heather Teague are exempt from disclosure pursuant to KRS 17.150(2)(d), which exempts records of law enforcement agencies from disclosure until such time as prosecution has been completed or declined, and 61.878(1)(l), which states that records made confidential by another Act of the General Assembly shall remain exempt from disclosure through the Open Records Act.
KRS 17.150, in pertinent part, 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:
. . . .
(d) Information contained in the records to be used in a prospective law enforcement action.
(3) When a demand for the inspection of the records is refused by the custodian of the record, the burden shall be uon the custodian to justify the refusal of inspection with specificity. Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section.
Under KRS 17.150(3), "the burden is upon the custodian to justify the refusal of inspection with specificity. " 06-ORD-035. In 16-ORD-084, we found that the KSP did not justify the refusal with specificity by merely stating that a criminal investigation was "still open" and "pending prosecution before the Kenton Circuit Court."
This is not the first time this particular KSP investigation has been the subject of appeals to this office. ( See 04-ORD-041; 07-ORD-140; 08-ORD-070; 12-ORD-198; 14-ORD-228.) Most recently, we upheld the denial of records from this investigative file under KRS 17.150(2)(d) as it was an active investigation. 14-ORD-228. We have, however, questioned "the continued reliance by the KSP on . . . KRS 17.150(2) in the absence of a more detailed explanation or specific insight regarding the status of the investigation" where an older investigation is concerned, and "remind[ed] the KSP of its duty 'to justify the refusal of inspection with specificity. '" 08-ORD-070.
"Although a public agency cannot indefinitely postpone access to investigative records by labeling an investigation 'open and active,' . . . this office has consistently held that it is 'within the sound discretion of the law enforcement agency to decide when a case is active, merely inactive, or finally closed.'" 07-ORD-140 (citing OAG 90-143; 04-ORD-114). Ms. Perkins advises:
The circumstances surrounding this investigation have not changed, as it is still an ongoing and active investigation in which prosecution has not been declined. . ..
While it is undisputed that there has been considerable time between the date of the crime and the present date, as of this date prosecution has not been declined and the investigation remains active and on-going. Consequently, it is imperative that the Kentucky State Police maintain its reports, preserve evidence, and preserve the chain of custody for evidence in the event that criminal charges are brought and proceed to trial. Further, public disclosure of undisclosed investigative details may tip involved persons that they are being looked at as being involved in a crime and could also adversely color witness recollections of the events.
(Emphasis in original.)
Additionally, the KSP has provided a sworn affidavit from Sgt. Jonathan Whittaker, Post 16 Investigative Sergeant, who advises that "[t]he KSP is actively investigating" the disappearance of Heather Teague, case number 16-95-1397, "including conducting interviews with multiple potential witnesses in July, August, and October 2016 some of which will lead to further investigation." Sgt. Whittaker also states that "[t]he Detective assigned to this matter will follow up on any leads generated from any credible source." He denies any suggestion that the KSP is "merely holding this investigation in open status to prevent public inspection of the case" and avers that "public disclosure of any materials pertaining to this investigation would irreparably harm the KSP in securing prosecution for any criminal charges that may potentially be brought."
In 12-ORD-198, the KSP provided similar evidence of ongoing activity in the Teague investigation. At that time, we found that the KSP had substantiated its characterization of the investigation as active "with adequate specificity, " since the record on appeal was not "devoid of proof of continuing efforts to solve the case or any progress to that end." We reach a similar conclusion in this case, and therefore "this office is unwilling to substitute its judgment for that of the KSP on this issue since the KSP has established that leads are being pursued." 07-ORD-140, n.2. Accordingly, we find no error in the KSP's invocation of KRS 17.150(2)(d) in this case, where the information is "to be used in a prospective law enforcement action, " since the refusal of inspection has been justified with specificity. 1 Thus, the KSP is not in violation of the Open Records Act.
A party aggrieved by this decision may appeal it by initiating an action in the appropriate circuit court pursuant to KRS 61.880(5)(a). The Attorney General must be notified of any action in circuit court, but should not be named as a party in that action or any subsequent proceedings.
Footnotes
Footnotes
1 Since we find KRS 17.150(2) dispositive of this matter, and since the KSP has asserted only that provision on appeal, we need not address the applicability of KRS 61.878(1)(h).