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 Washington County Sheriff's Department ("Department") violated the Open Records Act in denying the December 22, 2017, request of Nick Schrager, Editor of The Springfield Sun , for "several items regarding the arrest of Terry Tingle" on December 16, 2017, including the employment status of Deputies Ian Justice and Ryan White, both of whom were involved in the incident, as well as their "performance records," hire dates, "and any disciplinary actions they have received throughout their employment" at the Department. Mr. Schrager also requested "electronic copies (either through email, CD, or flash drive) of the body camera footage of the incident." In a timely written response, Sheriff Jerry Pinkston advised Mr. Schrager that Deputies Ian Justice and Ryan White "are both currently employed with the Washington County Sheriff['s] Department. Deputy Ian Justice was hired 10/15/15 and Deputy Ryan White was hired 10/10/17. Neither of the deputies have performance or disciplinary actions" to provide. "Due to this incident still [being] under investigation," Sheriff Pinkston continued, "the Department is not able to present you that information." Based upon the following, this office finds the Department's initial response deficient but affirms the Department's ultimate disposition of Mr. Schrager's request. See 16-ORD-087; 16-ORD-275; 17-ORD-144.
On appeal, Mr. Schrager emphasized that he was challenging the denial by the Department of his request for the "body camera footage of [Washington County Fiscal Court Magistrate] Terry Tingle being arrested by [the Department]. Tingle was arrested by deputies on Dec. 16, but was released before being booked in jail. His case no. is 17-M-00239." Upon receiving notification of Mr. Schrager's appeal from this office, the Department supplemented its denial, initially observing, "the investigation and prosecution is still open and ongoing. " Citing KRS 17.150(2) and KRS 61.878(1)(h), the Department acknowledged that such records "would be open to the public 'if prosecution is completed or a determination not to prosecute has been made.' In this instance, Mr. Tingle has not yet been arraigned and the charges are still pending. Prosecution is not yet complete, nor has a determination not to prosecute been made." Sheriff Pinkston noted that KRS 17.150 does not require a showing of harm, but even assuming that such a showing was necessary here, "it is clear given the fact that the Defendant has not even been arraigned, any such disclosure would certainly taint a jury pool given the size of this community and the perceived interest" in Mr. Tingle being arrested. "Evidence would be released for public consumption before a Court had an opportunity to even determine if it were admissible." 1 In light of the foregoing, the Department argued that the body camera video in dispute "is not yet open to the public as the investigation and prosecution of the events depicted in the bodycam video is still open and active, and [the video is] therefore exempted from production at this time."
The Department initially failed to cite KRS 61.878(1)(1), pursuant to which KRS 17.150(2) is deemed to be incorporated into the Open Records Act, or KRS 61.878(1)(h), and failed to explain how KRS 17.150(2) or KRS 61.878(1)(h) applied to the record that was being withheld as required under KRS 61.880(1). Pursuant to KRS 61.880(1), a "response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. " In construing the mandatory language of KRS 61.880(1), the Kentucky Court of Appeals observed that the "language of [KRS 61.880(1) ] directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents. . . . [A] limited and perfunctory response [does not] even remotely compl[y] with the requirements of the Act-much less [amount] to substantial compliance." Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky. App. 1996); 07-ORD-226; 12-ORD-211. In other words, a public agency must cite the applicable statutory exception, if any, and provide a brief explanation of how that exception applies to the records being withheld, or portions thereof, per KRS 61.880(1), in order to satisfy the burden of justifying its denial per KRS 61.880(2)(c). 04-ORD-106, p. 6; 03-ORD-045. Although there is no "clear standard of proof under the Kentucky Open Records Act, with one narrow exception [codified at KRS 61.872(6),"] this office has long recognized, "it is clear that the burden of proof in sustaining public agency action in the event of an appeal to the Attorney General, or to the circuit court, is on the agency. KRS 61.880(2)(c) ; KRS 61.882(3)." 00-ORD-10, pp. 10-11(citation omitted)(original emphasis). A "bare assertion" simply does not satisfy that burden. Id. , p. 11. See City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851-852 (Ky. 2013); 15-ORD-003 (agency failed to provide sufficient detail in either its original or its appeal response); 14-ORD-039. In responding to Mr. Schrager's appeal, the Department cured these deficiencies and justified its denial on the basis of KRS 17.150(2).
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)). 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 addition, audio and video recordings, including "dash-cam video recordings, " fall within the parameters of KRS 17.150(2). See 07-ORD-095 (quoting 04-ORD-234).
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. Id. However, the office did find that the agency's denial was appropriate under KRS 17.150, reasoning that KRS 17.150 does not require the agency to demonstrate a showing of harm. Id. "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." Id. , pp. 4-5; 17-ORD-144. Because the agency specified the nature of the prospective law enforcement action in 14-ORD-154, this office held that it had properly withheld the responsive investigative records under KRS 17.150. Id. Likewise, in 14-ORD-228, p. 4, this office determined that the Kentucky State Police properly withheld responsive investigative records where it specified that the records were "part of an open and ongoing investigation" and that "prosecution has not been declined." See also 15-ORD-077; 16-ORD-087; 16-ORD-246.
Here, the Department has consistently maintained that "prosecution is not complete" and the investigation remains "open and active." In addition, the Department explained that disclosure of the video prior to Magistrate Tingle's arraignment would taint the jury pool and result in the video being publicly accessible before a determination has been made regarding its admissibility. In so doing, the Department 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[.]" 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 Department's denial of Mr. Schrager'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 investigative records. Although the Department cannot indefinitely postpone access to the bodycam video in dispute by characterizing the investigation as open/active, it has adequately substantiated that characterization here. See 17-ORD-242. The denial is affirmed.
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 The adequacy of a showing of harm to the agency under KRS 61.878(1)(h) is highly dependent upon the facts of the individual case and must be narrowly determined on that basis." 14-ORD-139, p. 8. In 14-ORD-139, as in this case, the agency emphasized "that the criminal proceeding is at a pretrial stage, which distinguishes the case from the facts in City of Fort Thomas ." 14-ORD-139, p. 7. Noting that unwanted attention from the media in relation to a record, there a 911 recording, does not by itself "create a strong privacy interest" under existing authority, this office nevertheless acknowledged that "the criminal prosecution has not yet gone to trial." Id. , p. 8.
At such an "early stage in the criminal process, when no evidence has yet been presented," this office acknowledged "that the unpredictable effect of the public release of [the investigative records] witness' 911 recordings upon the fairness of the trial constitutes more than a speculative risk of harm." Id. See 14-ORD-223; 15-ORD-105; 16-ORD-162. Although KRS 17.150, which does not require a "showing of harm," is dispositive on the facts presented, the early stage of the proceedings in this case also weighs in favor of a determination that enough specificity has been provided to justify the Department's reliance on KRS 17.150(3). See 18-ORD-027, p. 6, n. 4.
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.