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) was justified in refusing the release of 911 dispatch calls. We find that the refusal was warranted for the reasons specified below.
By letter dated November 3, 2016, to the Kentucky State Police (KSP), Luke Lawless requested "911 dispatch recording of all calls received on or about July 18, 2016 (07/18/16) from Mr. James M. Fisher regarding an insurance matter." By letter of November 10, 2016, Emily Perkins, Official Custodian of Records, Legal Services Branch, KSP, responded in pertinent part that:
This information is part of an investigation that is still open, identified as Kentucky State Police case 15-16-0348; accordingly, your request is denied pursuant to KRS 17.150(2) 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.
Mr. Lawless then requested the Office of the Attorney General to review KSP's refusal to release the records. In response to the appeal, Ms. Perkins responded with more detail than in her original response, but did not cite KRS 61.878(1)(h) as a basis for non-disclosure:
In response to the appeal, the records requested pertain to a police investigation that is still open (identified as Kentucky State Police case 15-16-0348) and pending criminal prosecution before the Adair District Court in case 16-M-00354. Accordingly, all investigative documents, as well as records which may be used as evidence, must be preserved as they may be used in future criminal proceedings including trial. The provisions of KRS 17.150(2)(d) is clear in that records of law enforcement agencies to be used in prospective law enforcement action are exempt from disclosure. The KSP articulated in its correspondence specific justification for denial of the records in compliance with KRS 171.150(3), stating that release of the records in a public forum could result in prejudice to the witnesses and adversely impact successful prosecution of the case.
Ms. Perkins also cited to a previous Open Records Decision of this office, 14-ORD-154, pp. 4-5, to explain KSP's reliance on KRS 17.150(2)(d) for not disclosing the requested 911 recordings:
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. See Caminetti v. U.S., 242 U.S. 470 (1917) ("It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain . . . the sole function of the courts is to enforce it according to its terms." And if a statute's language is plain and clear, the Court further warned that "the duty of interpretation does not arise, and the rules which are to aid doubtful meanings need no discussion."). 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. (Emphasis added).
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 this appeal KSP did state in its initial response to Mr. Lawless 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." The prospective law enforcement action is the pending criminal prosecution 16-M-00354, Adair District Court. KSP thus satisfied, although minimally, the specificity required under KRS 17.150(3) 1 to support its refusal to provide the records. Accordingly, we find that KSP provided sufficient specificity for nondisclosure under KRS 17.150(2) and (3), and did not violate the Open Records Act in its response to Mr. Lawless that explained the reasons for denying the request. We note that KSP's response to the appeal did not cite KRS 61.878(1)(h) as a basis for nondisclosure as did the initial response, but find that the reasoning cited for relying on KRS 17.150(2) , as incorporated into the Open Records Act by KRS 61.878(1)(l), is a sufficient basis for denying the disclosure of the requested records. It should also be further noted that this decision does not provide a blanket exemption for all 911 recordings and that each appeal must be decided upon its own merits.
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 must not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 17.150(3) states: "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 . 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." (Emphasis added).