Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether Louisville Metro Police Department ("LMPD") violated the Open Records Act in its disposition of a request for investigative and internal review records. For the reasons stated below, we find that LMPD has justified its decision to withhold an investigative file by explaining the circumstances of the potential law enforcement action. The appeal is moot regarding the internal review records as LMPD provided those records subsequent to the initiation of this appeal.
On September 5, 2017, Ms. Deborah Yetter, a reporter for the Courier-Journal, made an open records request to the LMPD, requesting access to:
1. All records of LMPD's most recent investigation of the Nov. 11, 2014 injuries to ["BL"], a student at Jefferson County Public School's Binet School. It is my understanding an investigation into the case was reopened by the Crimes Against Children Unit and is now closed.
2. An internal review by the department's Professional Standards Unit of LMPD's initial investigation of the case.
On September 8, 2017, LMPD denied the request for records of the Crimes Against Children Unit ("CACU") investigation, claiming the records "are not available for release 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."
In regards to the request for records of the Professional Standards Unit ("PSU") investigation, LMPD initially provided only some of the requested records and that response was included as part of this appeal. By letter dated September 29, 2017, Assistant Jefferson County Attorney Annale E. Renneker responded to the appeal on behalf of LMPD, and advised that the requested PSU investigation had been made available, with redactions for home addresses and phone numbers pursuant to KRS 61.878(1)(a) . Appellant confirmed this, and accordingly, issues relating to the request for the PSU investigation have been rendered moot pursuant to 40 KAR 1:030 Section 6. Our analysis will only concern LMPD's denial of the CACU investigative records relating to the incident at Jefferson County Public School's Binet School.
On appeal, LMPD explained that while the investigation file "has been shared with the Commonwealth Attorney's Office; no decision has yet been made as to whether this case will be presented to the grand jury." LMPD asserts that the CACU investigation file is exempt pursuant to KRS 61.878(1)(h) and KRS 17.150(2), while Appellant argues that LMPD cannot withhold the entire investigative file.
KRS 17.150(2) and (3) . In its initial response to Ms. Yetter, LMPD relied upon KRS 17.150(2) and KRS 61.878(1)(h) as grounds for withholding the investigation. In relevant part, KRS 17.150(2) 1 states:
(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.
The CACU file withheld by LMPD is an investigative report maintained by a criminal justice agency. LMPD has stated that no decision has been made by the Commonwealth Attorney's Office as to whether to prosecute or not. LMPD's decision to withhold the investigative file appears to fall squarely within the exemption allowed by KRS 17.150(2)(d), as a "determination not to prosecute" has not been made. As this Office has previously observed in regards to KRS 17.150, "the right of public inspection set forth in KRS 17.150(2) is contingent upon the completion of the investigation and litigation or a determination having been made not to prosecute ." 01-ORD-85, p. 4, citing OAG 90-143, p. 3 (emphasis added); OAG 88-27; OAG 87-66; OAG 87-15.
However, 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. " "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). This Office has previously determined that, with respect to KRS 17.150:
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; 17-ORD-242. "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." 14-ORD-228.
LMPD's initial response did not clearly state that there was a prospective law enforcement action or that a decision not to prosecute had not been made. On appeal, LMPD addressed that deficiency by explaining that "LMPD is coordinating and communicating with the Commonwealth Attorney's Office, which will make a final decision on whether or not prosecution is appropriate." We find that LMPD initially failed to justify its refusal with the specificity required by KRS 17.150(3), but subsequently cured this deficiency on appeal as to the investigative file, which may properly be withheld at this time under KRS 17.150(2)(d). 2 We also remind LMPD that it cannot indefinitely withhold the investigative file, as 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."
As to Appellant's argument that LMPD may not withhold the entire investigation file, we find that, based on the circumstances of this appeal, LMPD has justified withholding the entire file, as it has described the "portions" that constitute the investigative file and which may be used in a prospective law enforcement action. 3 That those "portions" constitute the entire file does not violate KRS 17.150(2). It should be noted that this decision does not provide a blanket exemption for the entire investigative report in other prospective law enforcement actions where KRS 17.150 is the basis for nondisclosure; each open records appeal must be decided upon its own merits.
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 shall be notified of any action in circuit court, but shall not be named as a party in that action or in any subsequent proceeding.
Footnotes
Footnotes
1 KRS 17.150(2) is incorporated into the Open Records Act by operation of KRS 61.878(1)(l), which provides that "[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are not subject to inspection absent a court order.
2 Since we find KRS 17.150(2) dispositive of this matter, we need not address the applicability of KRS 61.878(1)(h) which LMPD also claimed justified its decision not to release the investigative file.
3 LMPD listed the contents of the investigation file to include: Interviews of responding officers; interviews of witnesses; photographs of injuries to victim; photographs of the scene; forensic reports; Yellow Sheet (a form specifically used by CACU which is used to sketch the scene of the incident); investigative letter; original report; hospital reports; photographs of suspect; and various memorandums and notes written by investigators.