Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Louisville Metro Police Department ("LMPD") violated the Open Records Act in denying the November 15, 2017, request (delivered on November 16) of Joann and Larry Kimsey and their daughter, Kathleen Fiddie, for "the open inspection of all LMPD public records relating to the investigation of the disappearance and/or death of their son and brother, James Michael Kimsey (DOB 01/27/1967). KRS 61.872." Specifically, the request included but was "not limited to written audio, video and electronic documentation" of nine categories of investigative records. By e-mail directed to Ms. Fiddie on November 17, 2017, LMPD Paralegal Pamela A. King confirmed receipt of the request; Ms. King asked Ms. Fiddie to "allow up to and including December 16, 2017 to locate and prepare any records for release pursuant to KRS 61.878(1)(a)." Ms. Fiddie replied on November 24, 2017, to document her telephone conversation with Ms. King regarding the status of their November 15, 2017, request. 1 Citing KRS 61.872, Ms. Fiddie also clarified that she and her parents were asking to inspect all existing responsive documents prior to receiving any copies and quoted the language of KRS 61.872(5).
By e-mail directed to Ms. Fiddie on December 14, 2017, Ms. King advised that she had not received the death investigation file regarding James Michael Kimsey from LMPD Archives. Ms. King observed that upon receipt of the file, "it will be reviewed and [it will] be determined whether any redactions and/or exemptions may be applicable in accordance with the Kentucky Open Records Act. " Citing KRS 61.872(5) , Ms. King advised that LMPD expected "to be able to provide copies of all nonexempt records and a detailed list of any exemptions in whole or in part that may be applicable by close of business January 30, 2018[.]" This appeal followed. Ms. Fiddie argued on appeal that LMPD failed to provide any reason for delaying access to its file regarding the subject death investigation for six more weeks. Because Mr. Kimsey's cause of death is undetermined, Ms. Fiddie concluded, LMPD has declined to provide any responsive documents. "Although not articulated," Ms. Fiddie further advised, "it appears LMPD is trying to invoke the law enforcement exception [KRS 61.878(1)(h)] to the ORA to avoid producing the requested records."
Upon receiving notification of Ms. Fiddie's appeal from this office, Assistant Jefferson County Attorney Annale E. Renneker responded on behalf of LMPD. The agency first acknowledged that its November 17, 2017, response was deficient in failing to cite KRS 61.872(5) and in failing to provide a detailed explanation of the cause for delaying access until December 16, 2017; LMPD noted that its December 14, 2017, response was closer to providing a sufficiently detailed explanation per KRS 61.872(5), which it should have offered initially. LMPD further acknowledged "its error in extending the date from December 16 to January 30." In light of these admissions by LMPD, this office will not belabor the point by summarizing the well-established legal authority construing the mandatory language of KRS 61.880(1) and 61.872(5). See 15-ORD-141. The agency's initial response was deficient.
Although LMPD "erroneously believed that the case was closed and in archives" on December 14, 2017, upon additional review the agency determined that the investigation of Ms. Fiddie's brother's death "is an active and open investigation." Thus, on appeal the agency invoked KRS 61.878(1)(h) and KRS 17.150(2)(d), incorporated into the Open Records Act by operation of KRS 61.878(1)(l), in denying Ms. Fiddie's request for all investigative records pertaining to her brother's death. Based upon the following, this office affirms the denial by LMPD on the basis of KRS 17.150(2)(d) consistent with existing legal authority.
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." 2 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)); 12-ORD-198. 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." 3 05-ORD-246, p. 2. The implication of these provisions when viewed jointly is that only those investigative files "pertaining to a named suspect after that suspect has been prosecuted or a decision has been made not to prosecute him" are subject to public inspection. 04-ORD-041, p. 4 (citation omitted). Neither of those has occurred here. Weighing in favor of a nondisclosure policy is "'the fact that such material typically contains hearsay and uncorroborated allegations about individuals who may be innocent and whose reputations could be unfairly injured by publication.'" Id.
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 v. Cincinnati Enquirer, 506 S.W.3d 842 (Ky. 2013), 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:
. . . 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. The analysis contained in 14-ORD-154 is controlling. Likewise, in 14-ORD-228, p. 4, this office determined that the Kentucky State Police 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." See 15-ORD-077; 16-ORD-087; 16-ORD-246. LMPD has consistently maintained as much in this case.
Relying on prior decisions by this office, LMPD argued on appeal that "'the right of 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[.]" 04-ORD-041, p. 4; OAG 88-27; OAG 87-66; OAG 87-15. Because the deciding factor in determining whether the records must be disclosed under KRS 17.150(2) is whether prosecution is completed or has been declined, Ms. Renneker asserted, the records custodian for the public agency denying access "must provide an explanation of the current status of the investigation. See OAG 86-80; 04-ORD-041; 16-ORD-246." LMPD acknowledged that KRS 17.150(3) requires that explanation to be made with specificity. 4 See 16-ORD-088 16-ORD-240.
Ms. Renneker emphasized that Ms. Fiddie requested all records pertaining to "the investigation of the disappearance and/or death" of James Kimsey; the request also identified broad categories of records that Ms. Fiddie believes exist under the "broader umbrella" of that investigation. However, LMPD advised that all of the records in dispute are part of the requested investigative file, i.e. , "still in the investigative stage of the criminal process." Here, as in 14-ORD-223, "any of the records in question may become evidence in a criminal trial." 5 Id. , p. 3; 15-ORD-105. Thus, LMPD provided "a 'specific reason' for withholding the records, and [its final response] was therefore sufficient under 14-ORD-154 to justify denial of the request on the basis of KRS 17.150[.]" 6 16-ORD-199, p. 5; 16-ORD-244; 16-ORD-275. Because this appeal presents no basis to depart from the foregoing line of authority, this office affirms the denial by LMPD of Ms. Fiddie's request. See 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). In so holding, this office notes that KRS 17.150(3) does not permit a public agency to permanently withhold investigation files. Although LMPD cannot indefinitely postpone access to the requested investigative records by characterizing the investigation as open/active, it has adequately substantiated that characterization here. See 17-ORD-242. Substituting our judgment for that of LMPD on this issue would be inappropriate on the facts presented. However, upon completion of the investigation or a determination not to prosecute, any investigative records which are responsive to Ms. Fiddie's request will be subject to disclosure unless those records are specifically excluded from application of the Act by another statutory exception.
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 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 Ms. Fiddie incorrectly advised that LMPD was required to issue a written response on Monday, November 20, 2017, as LMPD received their Wednesday, November 15, 2017, request via USPS Express Mail on Thursday, November 16, 2017. Pursuant to KRS 61.880(1), LMPD had three days, excluding weekends and holidays , in which to mail a written response to Ms. Fiddie and her parents. Accordingly, LMPD was required to mail its written response on Tuesday, November 21, 2017. LMPD responded via e-mail on Friday, November 17, 2017. Even assuming that both parties agreed to communicate via e-mail, which KRS 61.872(2) does not include among the permissible methods of transmission (see 15-ORD-174), LMPD failed to properly invoke KRS 61.872(5) in delaying its final response. See 17-ORD-105, pp. 4-6. The need to identify and review documents alone does not constitute a sufficiently detailed explanation as "[t]he need to review and redact records pursuant to KRS 61.878(4) is an ordinary part of fulfilling an open records request. It does not, in and of itself, constitute a reason for additional delay." 15-ORD-029, p. 3.
2 However, KRS 17.150(2) also provides that "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
(d) Information contained in the records to be used in a prospective law enforcement action.
3 On appeal, the agency noted that "intelligence" is defined as "' information concerning an enemy or possible enemy or an area.' Merriam-Webster.com, n.d. Web. Sept. 28, 2017 (emphasis added)." Accordingly, the records created in response to an incident "are documenting the information obtained relative to any and all people involved with the incident and the area of the incident. These records are the intelligence relied upon by criminal justice agencies. . . ."
4 Although LMPD noted as much in relation to KRS 61.878(1)(h), the fact "no definite conclusions have been reached by the investigating officers," and they are still "in an intelligence gathering phase of the investigation," is equally relevant under KRS 17.150(3).
5 Ms. Renneker noted that "because it is two years later, the LMPD detectives handling the investigation intend to revisit certain evidence and use new technology to obtain more evidence. The records Ms. Fiddie is requesting include witness interviews, cell phone records, and polygraph interviews and records." Without revealing too many specifics of the agency's intended actions, "which may serve to tip off potential suspects and witnesses," Ms. Renneker continued, "some evidence gathered in the initial stages of the investigation will be reviewed for reliability now that some time has passed."
6 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).