Opinion
Opinion By: Andy Beshear, Attorney General; James M. Herrick, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether Jessamine County E-911 ("E-911") violated the Open Records Act in its denial of Andrew Wood's January 14, 2018, request for records in connection with an assault occurring on January 13, 2018. For the following reasons, we find no substantive violation of the Act.
Mr. Wood's request to E-911 was partially for copies and partially for on-site inspection. The records for which he requested on-site inspection were produced for inspection on February 13, 2017, and that portion of the appeal is therefore moot. 1 Still at issue is Mr. Wood's request for copies of the following 2:
1. Complete computer aided dispatch (CAD) report for incident 2018-00002779 which began at 230 John Sutherland Drive at approximately 22:36 on January 13, 2018.
2. All recordings for the radio frequencies for Jessamine County EMS, Nicholasville Police Department, Jessamine County Sheriff Department, and Jessamine County EMS' hospital channel beginning at 22:30 on January 13, 2018, and ending at 0130 on January 14, 2018.
3. All phone calls, patches, or other audio recordings related to the above referenced incident.
4. All reports, e-mails, memorandums, or other documents related to the above referenced incident.
The request was received by E-911 on January 16, 2018.
On January 17, 2018, E-911 denied Mr. Wood's request for the items in controversy, on the basis of KRS 61.878(1)(h) and KRS 17.150(2)(d), asserting that "records of law enforcement agencies are exempt if the disclosure of the information would harm the agency by premature release of information to be used in a prospective law enforcement action. " E-911 stated as follows:
The records responsive to your request contain statements made by witness(es) and law enforcement to and through Central Dispatch. These records are records being used in an active investigation by the Nicholasville Police Department. Premature release of the records responsive to your request would cause a concrete harm to the agency in a prospective law enforcement action. ? Specifically, the audio recordings and CAD reports include 911 calls placed to Jessamine County Emergency Services relating to the incident and contain accounts from callers who may be interviewed as part of NPD's investigation [as well as law enforcement officers who were involved in the response and investigation]. Early release of the recordings, prior to the close of NPD's investigation, could compromise witnesses and [a]ffect their recollection of the events which occurred on that date. This would have a very negative impact on the veracity of witness statements relating to this incident [and witnesses'] recollection of the circumstances and events which transpired that evening. Statements from individuals who witnessed the events ? are critical to law enforcement's investigation of this case.
Mr. Wood's appeal was received in this office on January 31, 2018.
On appeal, Mr. Wood argues that E-911 cannot invoke KRS 61.878(1)(h) or KRS 17.150(2)(d) because neither it nor Jessamine County Emergency Services is a law enforcement agency. He further asserts that "E-911 is believed to be in possession of certain records related to an internal investigation or discussion of personnel matters related to this incident," which would not be within the scope of those statutory provisions.
In a response to this appeal dated February 6, 2018, Assistant Jessamine County Attorney Heather Warren argues, in part, as follows:
The radio frequencies for all agencies involved in this incident and investigation contain statements from witnesses, law enforcement officers investigating the events which transpired, and information relayed by dispatch relating to times and locations of the witnesses and officers during those events. These E-911 records were compiled, in this case, for the purpose of detecting and investigating statutory violations?
The Nicholasville Police Department, the investigating agency in this case, maintains their action is prospective and their investigation is not closed. Contrary to Mr. Wood's assertion in his appeal, this is not a blanket exemption without sufficient information regarding the "concrete risk of harm" posed by premature release of the exempted records. Our position is specific to the facts and circumstances present here, and our purpose ? is to balance the goals of the Kentucky Open Records Act against the need to protect the investigation and further law enforcement action in this case.
As it relates to Mr. Wood's assertion that some of the documents responsive to his request relate to an "internal investigation or discussion of personnel matters related to this incident," we are not in possession or control of any such documents nor is E-911 administration aware of the existence of any documents relating to such "internal investigation or discussion."
She additionally states that no records responsive to item 4 of the request exist within the custody or control of E-911.
A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. The agency discharges its duty under the Open Records Act by affirmatively so stating. 99-ORD-150. In the absence of anything in the record to suggest the existence of materials responsive to item 4 of the request, we find no basis for a substantive violation of the Act in regard to that item. Nevertheless, a public agency's "first obligation under the Open Records Act [is] to identify responsive records." 15-ORD-109. Since E-911 failed to determine whether any records existed prior to denying item 4 of the request, it committed a procedural violation of the Act. Id.
As to the remainder of the request, items 1-3, Ms. Warren indicates that "[f]or the purpose of this analysis, the records responsive to item #2 and #3 of Mr. Wood's request are the same." Therefore, we are concerned with essentially two items, the CAD report and the 911 recordings relating to the incident. KRS 61.878(1)(h) authorizes the nondisclosure of:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action? The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.
In
City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 851 (Ky. 2013), the Court held:
the law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern.
In a case of prospective law enforcement action, a public agency "must show (1) that the records to be withheld were compiled for law enforcement purposes; (2) that a law enforcement action is prospective; and (3) that premature release of the records would harm the agency in some articulable way." Id. at 850.
A public safety answering point ("PSAP"), or other entity which receives 911 calls and dispatches public safety agencies, may invoke KRS 61.878(1)(h) on behalf of a law enforcement agency "which has compiled the 911 call records as part of an investigation of a crime." 09-ORD-227 (citing 09-ORD-143). While 911 recordings may not be "categorically withheld" under this exception, they may be held exempt based on an adequate showing of harm to the investigating agency. 14-ORD-139. One element in favor of nondisclosure may be the fact that "the enforcement action is at a very early stage." 14-ORD-223.
In 15-ORD-105, we upheld the nondisclosure of a CAD report and 911 recordings by Jessamine County Emergency Services ("JCES") where KRS 61.878(1)(h) had been invoked on behalf of the Kentucky State Police. In that appeal, as here, the law enforcement agency had compiled the disputed records in the process of investigating statutory or regulatory violations. Our decision was substantially based on JCES' argument that the CAD report contained "caller information, time, and details regarding the incident," and the audio recordings contained "accounts from callers who may be interviewed as part of KSP's investigation" and "law enforcement officers who were dispatched to the scene," so that their disclosure during the active investigation "could compromise witnesses and [affect] their recollection of the events." 15-ORD-105. As in this case, the open records request was submitted to JCES less than two days after the incident. Id.
Since we find the facts of 15-ORD-105 essentially indistinguishable from those presented here, we must affirm E-911's partial denial of Mr. Wood's request based on KRS 61.878(1)(h). Accordingly, we attach a copy of that decision hereto and adopt its reasoning as the basis for our decision in the present appeal. As KRS 61.878(1)(h) is dispositive of the substantive issues on appeal, we need not address E-911's arguments under KRS 17.150(2)(d) . In conclusion, we find that E-911 committed a procedural violation but no substantive violation of the Open Records 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 These included the personnel files for the dispatchers on duty during the incident, from which redactions of "highly personal information" such as "social security numbers, personal addresses, phone numbers, marital status, doctor's notes driver's history records, and driver's license numbers" were made under KRS 61.878(1)(a), consistent with the principles of Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013).
2 Two additional items in the request were provided to Mr. Wood prior to the appeal.