Opinion
Opinion By: Andy Beshear,Attorney General;Gordon R. Slone,Assistant Attorney General
Open Records Decision
The issue presented in this case is whether Kentucky State Police ("KSP") violated the Open Records Act in its disposition of a request for records from an investigative file where the investigation has been ongoing for over 22 years. For the reasons stated below, we find that KSP properly denied release of the records, but remind KSP that it cannot indefinitely delay disclosure of those records.
Background . This office has issued seven (7) open records decisions 1 since 2004, relating to KSP's investigation into the disappearance of Heather Teague, who was last seen in Henderson County on August 26, 1995. The appeals have been brought directly by Heather Teague's mother, Sarah Teague, or on Sarah Teague's behalf. KSP has generally responded, in those appeals, that the investigation into Heather Teague's disappearance remains open and active, and that disclosure of the contents of the investigative file could harm the continuing investigation and/or potential prosecution. In 16-ORD-246, we upheld KSP's nondisclosure of certain records from that investigation, and that decision was appealed to Henderson Circuit Court by Sarah Teague. That appeal was transferred to Franklin Circuit Court, case 17-CI-346. In 17-ORD-142, we declined jurisdiction of an open records appeal because the issues presented in that appeal were essentially identical to the issues previously decided in 16-ORD-246, and because that decision is on appeal to Franklin Circuit Court.
Current Request and Appeal . By letter of September 10, 2017, to KSP, Sarah Teague ("Appellant") requested "all mugshot records of Marvin Ray Dill, to include the three from Webster County Jail from April thru June of 1995. DOB 8/22/65, deceased 9/1/95. Please supply all records which document the existence of all photos or mugshots in any file. Also include any records which describe Dill's appearance. "
Mugshot Records . The Official Custodian of Records for KSP responded to the request by stating that the entire investigation had been reviewed but there was no mug shot photograph of Mr. Dill in the file, and no mug shot images in the mug shot files. "Therefore, there are no records in existence [responsive to the request] in the possession of the Kentucky State Police." Appellant appealed that response to our Office, generally disbelieving KSP's response, but also arguing that KSP had not answered her specific request for "any records which describe Dill's appearance. "
In response to the appeal of Appellant's request, KSP stated:
This information is part of an investigation that is still open; accordingly, the request is denied pursuant to KRS 17.150(2)(d), which states 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, and 61.878(1)(1), which states that records made confidential by another Act of the General Assembly shall remain exempt from disclosure through the Open Records Act. Premature release of any records related to an ongoing investigation in a public forum could result in prejudice to the witnesses and may adversely affect their recollection of the events.
In addition to providing that basis for denying the open records request, KSP requested that this Office abstain from rendering a decision in the appeal as "other records in the investigative file involving the disappearance of Heather Teague are currently part of a pending Franklin Circuit Court case." KSP provided pleadings from the Franklin Circuit Court case which reflect that Appellant made three additional open records requests in September 2017, to KSP, and that KSP has asked Franklin Circuit Court to issue a stay to prevent Appellant and her attorney from filing additional any related requests until the Court issues its ruling on the open records decision that was appealed.
We decline KSP's request to abstain from issuing this decision; there is no provision in the Open Records Act that permits this Office to abstain from issuing an open records decision. KRS 61.880(2)(a) defines the role of the Office of the Attorney General: "The Attorney General shall review the request and denial and issue within twenty (20) days, excepting Saturdays, Sundays and legal holidays, a written decision stating whether the agency violated provisions of KRS 61.870 to 61.884." 2 This Office does not have the statutory authority to comply with KSP's request to abstain from issuing a decision in this appeal.
Duplicative Requests/Appeal Before Franklin Circuit Court . We decline to issue a decision on that part of the current open records request for "all mugshot records of Marvin Ray Dill, to include the three from Webster County Jail from April thru June of 1995. DOB 8/22/65, deceased 9/1/95." That request is essentially identical to a request that this Office decided in 16-ORD-246, where Appellant requested ". . . all mugshot records of suspect, Marvin "Marty" Dill, from Webster County and Henderson Jail in 1995." Likewise, in 14-ORD-228, we decided that KSP properly withheld a request for "all mug shots, booking photos, or any other photos of Marvin Ray Dill, including dates. He was booked into Webster Co. Ky jail three times: 4/25/95, 4/28/95 and 5/24/95 . . ." Because of the essentially identical nature of these requests, and having issued previous decisions on the request in 16-ORD-246 and 14-ORD-228, we decline to reconsider those decisions. See 40 KAR 1:030 Section 4. 3
Also, because Appellant has appealed 16-ORD-246, it would "be improper for this office to substantively determine [the] open records question." OAG 88-78; accord , 07-ORD-194; 17-ORD-096 (other citations omitted). Accordingly, this office respectfully declines to reconsider this particular request. See 17-ORD-142, and the authorities cited therein, pp. 4-5.
Records . . .of all photos or mugshots : Appellant also requested ". . . all records which document the existence of all photos or mugshots in any file." Although Appellant asked for records in "any file," her appeal reflects an understanding that she was referring to the records in the investigative file of her daughter's disappearance and that she was referring to photographs or mug shots of Marvin Dill. KSP's reply, September 14, 2017, to the request, was definitive in answering that KSP "has reviewed the entire investigation and determined that there is no mug shot photograph of Mr. Dill contained in the file . . . there are no mug shot images of Mr. Dill in the mug shot files. Therefore there are no records in existence in the possession of the Kentucky State Police." Although Appellant argues that she was asking for "records" documenting the existence of photos or mugshots, and not just mugshots or photographs, we find KSP's denial to be inclusive of her request.
KSP fulfilled its obligations under the Open Records Act, in regards to this request, by conducting a search for the alleged records; determining that no responsive records existed and then notifying Appellant that there were no responsive records. "Obviously, a public agency cannot afford a requester access to records which do not exist." 99-ORD-98 (other citations omitted). "The agency discharges its duty under the Open Records Act by affirmatively so stating." 99-0RD-150 (other citations omitted). Moreover, an agency is not required to "prove a negative" when explaining that it does not have a record or that it does not exist. 09-ORD-194 (other citations omitted); compare, 16-ORD-101 (existence of a statute directing the creation of the requested record creates a presumption of the record's existence). We find no violation of the Kentucky Open Records Act by KSP in its disposition of this request.
Records Describing Dill's Appearance . Appellant requested "Also include any records which describe Dill's appearance. " KSP's response to the original request did not address this specific item but its response to the open records appeal denied the request on the basis of KRS 17.150(2)(d) 4 and by explaining that the information requested is part of an open investigation. KSP explained the harm that could result from disclosure of the contents of the investigative file: "Premature release of any records related to an ongoing investigation in a public forum could result in prejudice to the witnesses and may adversely affect their recollection of the events."
KRS 17.150(2) provides that "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. " "The legislature has placed the burden of proving that a record is exempt from disclosure on the agency asserting the exemption. "
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76, 81 (Ky. 2013). See also KRS 61.882(3) ("the burden of proof shall be on the public agency" ); 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" ). The exemption in KRS 17.150(2) 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. Under KRS 17.150(3), "the burden is upon the custodian to justify the refusal of inspection with specificity. " 06-ORD-035.
Here, KSP specified that the requested records are "part of an investigation that is still open . . ." and that "[p]remature release of any records related to an ongoing investigation in a public forum could result in prejudice to the witnesses and may adversely affect their recollection of the events." Having specified the nature of the prospective law enforcement action here, the agency properly withheld responsive records under KRS 17.150. KRS 17.150 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. In the recent appeals regarding this investigation, and in its pleadings to Franklin Circuit Court, KSP has cited its ongoing investigative actions and the potential for prosecution.
KSP has consistently asserted that public disclosure of any portion of the investigation would "irreparably harm the KSP in securing prosecution for any criminal charges that may potentially be brought." 12-ORD-098. See also, 16-ORD-087 and 17-ORD-144 (prejudice to the recollection of witnesses was sufficient justification under KRS 17.150(2)(d) to deny release of records from open investigation where prosecution was a possibility). However, KRS 17.150(3) does not allow for an agency to permanently shield its investigations: "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." While KSP cannot indefinitely postpone access to the requested investigative records by characterizing the investigation as open/active, it has substantiated that characterization with adequate specificity in this case. Substituting our judgment for that of KSP on this issue would be inappropriate on the facts presented. Upon completion of the investigation or a determination not to prosecute, any investigative records which are responsive to Appellant's request will be open for inspection unless they are specifically excluded from application of the Act by another statutory exception.
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 proceeding.
Footnotes
Footnotes
1 The seven (7) decisions are 04-ORD-041; 07-ORD-140; 08-ORD-070; 12-ORD-198; 14-ORD-228; 16-ORD-246; and 17-ORD-142.
2 KRS 61.880(2)(b) allows the twenty-day period to be extended by an additional thirty days under specified circumstances, circumstances which are not present here.
3 40 KAR 1:030 Section 4 states: "The Attorney General shall not reconsider a decision rendered under the Open Records Law or the Open Meetings Law. Parties dissatisfied with a decision may appeal the decision to circuit court as provided in KRS 61.880(5) and 61.848."
4 KRS 17.150(2) and (3) are incorporated into the Open Records Act by operation of KRS 61.878(1)(1), which exempts: "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly[.]"