Request By:
Timothy Glen Ashlock
Emily M. Perkins
Cody Weber
Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
Timothy Glen Ashlock initiated this Open Records Appeal challenging the denial by the Kentucky State Police ("KSP") of his May 24, 2017, request for a copy of the "911 call tape -- CAD Report 2016[-]28310" relating to a December 23, 2016, incident which occurred in Grayson County, Kentucky. In a timely written response, Official Custodian of Records Emily M. Perkins advised:
This information is part of an investigation that is still open, as prosecution has not been declined; accordingly, your request is denied pursuant to KRS 17.150(2)(d), which exempts law enforcement records from disclosure until such time as prosecution is declined or completed, 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. However, a copy of the initial KYIBRS report, before the narrative portion begins (you may receive less pages than the number indicated on the report), is subject to disclosure regardless of the status of the investigation pursuant to [09-ORD-205]. Therefore, a copy of that report is enclosed. Certain information (DOB, SSN, address, phone numbers, etc.) contained in this report has been redacted pursuant to KRS 61.878(1)(a) as disclosure of this information would constitute a clearly unwarranted invasion of personal privacy.
In addition to a copy of the KYIBRS Report, 1 a copy of a "Compliance with Discovery" in Case No. 17-CR-00069, Commonwealth of Kentucky v. Timothy Ashlock, Grayson Circuit Court, Division II, was enclosed. Assistant Commonwealth's Attorney Crystal L. Thompson certified that she e-mailed a true and correct copy of the document to Krsna Tibbs, counsel for Mr. Ashlock, on April 27, 2017.
Upon receiving notification of Mr. Ashlock's Appeal from this office, Staff Attorney Cody Weber elaborated on the position of KSP. In reiterating the agency's reliance on KRS 17.150(2)(d) and 61.878(1)(h), Mr. Weber confirmed that the 911 audio recording and CAD (Computer-Aided Dispatch) Report relate to an open investigation, as there is a pending criminal prosecution in Grayson Circuit Court, Case No. 17-CR-00069. Thus, KSP asserted:
Premature release of these records in a public forum will harm or impede an ongoing investigation as it could result in prejudice to the potential witnesses and has the potential to adversely color witnesses['] recollection of the events. Further, public disclosure could also result in bias to a potential jury pool as the pending criminal case is still ongoing as evidenced by [the CourtNet] record for Grayson Circuit Court case 17-CR-00069 showing a pretrial conference is scheduled for 7/11/17.
Mr. Weber enclosed a copy of the KYIBRS Report concerning the incident as well as the CourtNet record for Grayson District Court Case No. 17-F-00017 and Grayson Circuit Court Case No. 17-CR-00069; he also noted that prior decisions by this office validate the agency's position that a 911 audio recording and CAD Report are protected from disclosure if there is an "open, ongoing investigation, as premature release of the records will harm or impede the investigation."
This office has previously deemed the original response of KSP deficient under both KRS 17.150(2)(d) and 61.878(1)(h), 2 in failing to "justify the refusal of inspection with specificity" 3 and in failing to make any showing of the harm that would result from premature disclosure, " respectively. See 16-ORD-086; 16-ORD-087; compare 16-ORD-240 (KSP satisfied, "although minimally, the specificity required under KRS 17.150(3) to support its refusal to provide the records"); 16-ORD-275; 17-ORD-094. However, as in 16-ORD-087, for example, KSP cured these deficiencies on appeal. Based upon the following, this office affirms the denial by KSP of Mr. Ashlock's request for the 911 audio recording and CAD Report on the basis of KRS 17.150(2)(d), incorporated into the Open Records Act by operation of KRS 61.878(1)(l). 4
Unless exempted by other provisions of the Open Records Act, "public records exempted under [KRS 61.878(1)(h)] shall be open after enforcement action is completed or a decision is made to take no action." Similarly, 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." The Attorney General has analyzed the underlying purpose of KRS 17.150(2) and its "companion statute," KRS 61.878(1)(h), observing 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.
In 14-ORD-154, this office was asked to determine whether the Lakeside Park-Crestview Hills Police Authority violated the Open Records Act in denying a request for specified categories of investigative records pertaining to an individual submitted by said 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 , 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. However, the Attorney General went on to find that its denial was appropriate under KRS 17.150, reasoning as follows:
Here, the Police Authority explain 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). 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.
14-ORD-154, pp. 4-5; 16-ORD-199. Likewise, in 14-ORD-228, p. 4, this office determined that KSP properly withheld responsive records where it specified that the records were "part of an open and ongoing investigation" and that "prosecution has not been declined."
In the instant matter, KSP likewise specified that an ongoing investigation exists and verified that a criminal prosecution is pending in Grayson Circuit Court. See 15-ORD-077. This 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[.]" 16-ORD-199, p. 5; 16-ORD-275 (KSP minimally satisfied the specificity requirement of KRS 17.150(3) to justify its denial per KRS 17.150(2) of a request for 911 audio recordings related to a pending criminal prosecution) . Because this Appeal presents no basis to depart from this line of authority, this office affirms the denial by KSP of Mr. Ashlock's request.
Either party may appeal this decision 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 At pages 3-4 of 16-ORD-199, this office reaffirmed that "'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:
"Some 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); see also 11-ORD-146; 14-ORD-039.
2 See City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013)(denial under KRS 61.878(1)(h) requires a "concrete risk of harm to the agency in the prospective action").
3 Pursuant to KRS 17.150(3):
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.
4 In relevant part, KRS 17.150(2) provides:
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 Information contained in the records to be used in a prospective law enforcement action.