Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Nicholasville Police Department ("NPD") violated the Open Records Act in its denial of Andrew Wood's January 14, 1 2018, request for records in connection with an assault occurring on January 13, 2018. For the reasons stated below, we find that the NPD partially violated the Act and subverted its intent under KRS 61.880(4).
Mr. Wood's request to the NPD was partially for copies and partially for on-site inspection. He requested copies of the following:
1. All records related to James Rowlett, [personal identifiers omitted].
2. All body worn camera recordings for any interactions with James Rowlett occurring on January 13 or 14, 2018, including, but not limited to interactions occurring between 22:30 on January 13, 2018, and ending at 0130 on January 14, 2018.
3. All internal electronic messages, memorandums, notes, or other documents related to the January 13, 2018, incident in which James Rowlett assaulted two EMS crewmembers.
4. Any reports, photographs, recordings, evidence logs, or other documents related to the above referenced incident.
5. All policies, procedures, guidelines or other documents which govern the actions of officers within the Nicholasville Police Department.
For on-site inspection, Mr. Wood requested the following:
1. Complete personnel files for every Nicholasville Police Officer on duty during the above referenced incident.
2. Training records for each Nicholasville Police Officer on duty during the above referenced incident.
On January 18, 2018, the NPD partially denied Mr. Wood's request. Items 1 through 4 were denied on the basis of KRS 61.878(1)(h) and KRS 17.150(2)(d), as the requested records were "compiled in the process of detecting and investigating statutory or regulatory violations," and the information contained in them was "expected to be used in a prospective law enforcement action which has not yet been completed." As justification, the NPD stated:
Premature release of the requested information in a public forum would harm NPD as it could result in prejudice to potential witnesses and/or bias to a potential jury pool. Further premature release of the requested information would circumvent the Kentucky Rules of Criminal Procedure as it would allow a prospective defendant access to information that would otherwise be exempt from discovery.
Regarding the request for policies and procedures, the NPD cited no exception to the Open Records Act, but stated:
The requested documents contain policies and recommendations affecting the security of our officers and citizens and, therefore, cannot be released in their entirety. If you can articulate the specific policies or procedures you would like to inspect, we will make a determination if the same can be released without posing a threat to our officers or to the public generally.
With regard to the request to inspect officers' personnel files, the NPD again cited no exception to the Act, but denied inspection on grounds "that such files contain a mixture of exempt and non-exempt information" and "[i]t is incumbent on [Mr. Wood] as the requestor to specify the particular documents within such files to be inspected so that we can make a determination as to whether disclosure of the specific information is proper." Lastly, as to training records, the NPD stated that training certificates were available for inspection "by appointment. "
In response to a follow-up request from Mr. Wood, the NPD on January 23, 2018, provided a copy of the Uniform Offense Report with personal identifiers and the "Narrative" sections redacted. The remainder of the records covered by items 1-4 were again denied, as prosecution was not complete. The policy and procedure manual was denied pursuant to KRS 61.878(1)(i), in reliance on 93-ORD-18, and the NPD further alleged that "[r]edaction of the entire policy would place an unreasonable burden on NPD in contravention of KRS 61.872(6)." The table of contents to the procedure manual was provided to Mr. Wood "for purposes of identifying the sections you would like to review with specificity. " Finally, as to the personnel files, the NPD invoked KRS 61.878(1)(a) regarding "personal information" but agreed to make redacted personnel files available "by appointment along with the requested training certificates."
Mr. Wood's appeal to this office was dated January 25, 2018. The NPD responded to the appeal on February 1, 2018, reiterating its prior arguments and further specifying that the "NPD Departmental Memoranda [responsive to the request are] properly categorized as intelligence and investigative reports as they are internal reports prepared solely for the purpose of apprising NPD's commanding officers of the responding officers' investigative efforts and findings." As to the policy and procedure manual, the NPD added that it "contains countless provisions the disclosure of which would jeopardize the department's investigative effectiveness as well as the safety of its officers and that of the public at large."
Investigative records concerning incident of January 13, 2018
With regard to items 1-4 of the request, the records relating specifically to the January 13, 2018, incident, KRS 17.150(2) provides that "intelligence and investigative reports maintained by criminal justice agencies . . . . 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." 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 category of "intelligence and investigative reports" is broad enough to include audio and video recordings, along with most of the written investigation records at issue here. 04-ORD-234.
The exception would be the UOR-1 (Initial Page), which has subsequently been provided to Mr. Wood in this case. 09-ORD-205; 17-ORD-121. The NPD has indicated that the only redactions made are "names, addresses, phone numbers, and other personal identifiers, " in keeping with the privacy principles of
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013). As these "categorical redactions" under KRS 61.878(1)(a) 2 are now well-established law, we find no error in withholding this material.
As to the remainder of the investigative records, we have recently held that potential "prejudice to potential witnesses and/or bias to a potential jury pool" was a sufficient basis to withhold intelligence and investigative reports where the prosecution remained prospective. See, e.g. , 17-ORD-144; 17-ORD-094. Since the prosecution of this incident is still in an initial stage, 3 we find no basis upon which to distinguish these recent holdings. Accordingly, the NPD permissibly withheld the requested items 1-4 on the basis of KRS 17.150(2)(d). 4
Policy and procedure manual
Turning to item 5, the NPD policy and procedure manual, we find that the agency has failed to justify withholding the entire manual on the basis of KRS 61.878(1)(j) 5 or KRS 61.872(6). The former argument is based on our prior decision in 93-ORD-18, the reasoning of which we abandoned in 95-ORD-121 with the following language:
[Certain previous open records decisions] were grounded in the notion that an operations manual is a preliminary, intra-agency document in which policies are formulated or recommended. Today we depart from that view. To the extent that the policy and procedures manual of a public agency represents final action of the agency relative to the matters addressed in the manual, the earlier line of opinions ? can no longer be relied on as controlling.
Thus, we are left with the NPD's second argument, which is that to redact the entire policy and procedure manual (consisting of something over 450 pages) to eliminate potential threats to officers or the public would pose an unreasonable burden on the agency under KRS 61.872(6).
KRS 61.872(6) provides, in relevant part:
If the application places an unreasonable burden in producing public records [,] the official custodian may refuse to permit inspection of the public records or mail copies thereof. However, refusal under this section shall be sustained by clear and convincing evidence.
The need to redact public records due to safety concerns, while "tedious and time-consuming work," does not, in and of itself, "rise to the level of an unreasonable burden under KRS 61.872(6)."
Com. v. Chestnut, 250 S.W.3d 655, 664-65 (Ky. 2008). Therefore, we cannot conclude that the NPD has met the standard of "clear and convincing evidence" to justify shifting the burden onto Mr. Wood to identify specific sections of the manual he wishes to review. Rather, the NPD should have some awareness of which policies and procedures would constitute a threat if disclosed, so as to redact those sections and produce the rest.
We acknowledge that, with regard to specific sections of the NPD manual, KRS 61.872(6) may properly be invoked "if release of those records would compromise a significant government interest, thereby necessitating an immediate revision of policy or practice so as to avoid the subversive use of the records, or information contained therein." 04-ORD-245. The burden of identifying those sections with specificity, however, rests with the NPD, which may justify particular redactions or omissions with clear and convincing evidence under the standard articulated in 04-ORD-245. Simply going through the manual to make that determination, however, is not unduly burdensome under Chestnut, supra. Therefore, we find that NPD violated the Open Records Act by withholding the policy and procedure manual in its entirety.
Personnel files and training records
The NPD has indicated that redacted versions of the officers' personnel files have been made available for inspection, with the withheld information consisting of "home address, social security number, medical records, and marital status," as well as employee evaluations. These are all materials that we have recognized may typically be redacted on personal privacy grounds under KRS 61.878(1)(a). 07-ORD-192; 16-ORD-185. Accordingly, NPD is no longer improperly denying Mr. Wood inspection of the personnel files.
Nevertheless, to restrict public access to records during an agency's regular business hours by requiring an appointment with a specific individual imposes an unlawful restriction on access in contravention of KRS 61.872(3)(a). 6 93-ORD-48; 15-ORD-182. In this case, the NPD has attempted to require Mr. Wood to make an appointment for inspection with Lt. Michael A. Fleming. To that extent, we find that the NPD's response subverted the intent of the Open Records Act, within the meaning of KRS 61.880(4), as to both the personnel files and the training records.
Conclusion
Accordingly, we find that the NPD violated the Open Records Act by withholding its policy and procedure manual in its entirety, and subverted the intent of the Act by imposing an appointment requirement upon the inspection of public records within regular business hours. In all other respects, the NPD's ultimate disposition of Mr. Wood's request was justified under the Act.
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 proceedings.
Footnotes
Footnotes
1 The request is stamped as received on January 16, 2018.
2 KRS 61.878(1)(a) exempts from public inspection "[p]ublic records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy."
3 As of February 8, 2018, Mr. Woods reported that the first indictment in connection with the incident had just been filed on February 7, 2018.
4 Since KRS 17.150(2)(d) is dispositive on this issue, we need not address the NPD's arguments under KRS 61.878(1)(h).
5 Prior to a 1994 amendment, KRS 61.878(1)(i) contained the present text of KRS 61.878(1)(j), which exempts from public inspection "[p]reliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended."
6 A person may inspect the public records [d]uring the regular office hours of the public agency."