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 Louisville Metro Police Department ("LMPD") violated the Open Records Act in its disposition of four requests made during 2017 for records relating to alleged wrongdoing in connection with LMPD's youth program known as the "Explorer Program." The requests at issue were dated March 21, June 2, November 2, and November 15, 2017. This office received this appeal from attorney Tad Thomas on March 15, 2018, and LMPD responded on March 16 and April 18, 2018. For the reasons stated below, we find a partial violation of the Act.
It appears from the record that Mr. Thomas represents several plaintiffs in civil lawsuits against LMPD and other entities and individuals in both Jefferson Circuit Court and the United States District Court for the Western District of Kentucky. The defendants include the City of Louisville, Jefferson County Metro Government, former LMPD officers Kenneth Betts and Brandon Wood, Major Curtis Flaherty, and unknown employees, agents, and servants of LMPD. 1 Mr. Thomas brings this appeal on behalf of himself and his former co-counsel in the civil actions, David Yates and Thomas Juanso (who made the last three of the four open records requests at issue).
LMPD indicates that the causes of action and theories of recovery in the civil actions include negligence, assault, battery, sexual assault, sexual harassment, vicarious liability, negligent hiring, negligent entrustment, negligent training, negligent supervision, negligent retention, intentional infliction of emotional distress, fraud by omission/duty to disclose, fraudulent concealment, failure to report, childhood sexual assault and abuse, civil rights violations, hostile educational environment, and sex discrimination. The allegations in the lawsuits include failure to employ qualified persons for positions of authority, failure to provide conditions that meet constitutional standards, failure to promulgate appropriate policies and procedures governing the Explorer Program, sexual assault individually or in conspiracy, failure to report illegal conduct, failure to take appropriate action to stop such conduct, failure to train or supervise so as to prevent such conduct, knowledge of prior similar allegations, and failure to investigate such conduct.
It is undisputed that one of these civil actions against LMPD was pending as of May 3, 2017. It is further undisputed that all discovery in that action was stayed by order of the court on May 3, 2017, pending the outcome of a motion to dismiss. Another civil action was filed on August 31, 2017. All discovery in that action was stayed by order of the court on October 23, 2017, also pending the outcome of a motion to dismiss.
First request: March 21, 2017
Mr. Thomas' first request, dated March 21, 2017, consisted of 27 separate items, only five of which are currently in dispute. We address these according to their subject matter.
Item 6. "A copy of all electronic mail to or from Brandon Wood, Kenneth Betts or Curtis Flaherty from 2010 to the present"
Item 7. "A copy of all electronic mail to or from any person pertaining to any allegations of physical or sexual abuse in the LMPD Explorers program [or] to any allegations of physical or sexual abuse from any officer ever associated, in any capacity, with the LMPD Explorer's program"
Although the e-mails responsive to item 6 were produced, LMPD indicated that "[r]edactions have been made pursuant to the Personal Privacy Exemption contained in KRS 61.878(1)(a)." LMPD made the same statement about redactions with respect to the records produced in response to item 7, and also withheld 58 pages which it indicated "are protected by the Attorney-Client privilege." On appeal, Mr. Thomas does not dispute the claim of attorney-client privilege, but contends that LMPD failed to identify what material was redacted for privacy reasons.
KRS 61.880(1) provides that any agency response denying inspection "in whole or in part" must "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 ." (Emphasis added.) A response that fails to identify the withheld material does not satisfy the explanation requirement. 17-ORD-146. Therefore, we find a procedural violation of KRS 61.880(1) in LMPD's failure to fulfill this requirement.
In response to this appeal, LMPD explains that the redacted material consists of "personal phone numbers, personal email addresses, names of private citizens not associated with LMPD or the Explorer Program, names of Explorers who were juveniles, and the name of the employee accessing all the emails so as to prevent any misconceptions regarding the parties relative to the responsive records." Personal contact information is routinely recognized as subject to "categorical" redaction under KRS 61.878(1)(a), which protects "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy. "
Kentucky New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (Ky. 2013). Categorical redaction of names of juveniles has likewise been upheld. Id. Thus, these items were properly redacted.
We turn next to the "names of private citizens not associated with LMPD or the Explorer Program." In 1992, the Kentucky Supreme Court established a standard by which we judge the propriety of a public agency's reliance on KRS 61.878(1)(a) as a basis for denying access to public records. At pages 327 and 328 of
Kentucky Bd. of Examiners of Psychologists v. Courier-Journal and Louisville Times Co., 826 S.W.2d 324 (Ky. 1992), the Court articulated the following standard:
[G]iven the privacy interest on the one hand and, on the other, the general rule of inspection and its underlying policy of openness for the public good, there is but one available mode of decision, and that is by comparative weighing of the antagonistic interests. Necessarily, the circumstances of a particular case will affect the balance. The statute contemplates a case specific approach by providing for de novo judicial review of agency actions, and by requiring that the agency sustain its action by proof. Moreover, the question of whether an invasion of privacy is "clearly unwarranted" is intrinsically situational, and can only be determined within a specific context.
The Court admonished that "the policy of disclosure is purposed to subserve the public interest, not to satisfy the public's curiosity." Id.
In a subsequent analysis of the privacy exemption, the Court of Appeals refined this standard.
Zink v. Com., Dep't of Workers' Claims, 902 S.W.2d 825 (Ky. App. 1994). At page 828 of that opinion, the court discussed its "mode of decision":
[O]ur analysis begins with a determination of whether the subject information is of a 'personal nature.' If we find that it is, we must then determine whether public disclosure 'would constitute a clearly unwarranted invasion of personal privacy. ' This latter determination entails a 'comparative weighing of antagonistic interests' in which the privacy interest in nondisclosure is balanced against the general rule of inspection and its underlying policy of openness for the public good. [Bd. of Examiners, supra,] at 327. As the Supreme Court noted, the circumstances of a given case will affect the balance. Id. at 328.
The public interest to be considered is the purpose of the Open Records Act in general, which "is meant to open the state's public agencies to meaningful public oversight, to enable Kentuckians to know 'what their government is up to.' It is not meant to turn the state's agencies into a clearing house of personal information about private citizens readily available to anyone upon request." Kentucky New Era, Inc., supra, 415 S.W.3d at 89. See also Zink, supra, 902 S.W.2d at 829 ("the purpose of disclosure ? is not fostered however by disclosure of information about private citizens ? that reveals little or nothing about an agency's own conduct").
Names of witnesses and other private citizens that appear incidentally in law enforcement records are subject to a heightened privacy interest where the individuals were not charged with a crime. 17-ORD-075. In the absence of circumstances indicating a greater countervailing public interest in the disclosure of such persons' identities, the names themselves constitute a "minimal addition [that] would not significantly serve the public interest in monitoring the [Police] Department's execution of its official functions." 12-ORD-227. Since no overriding interest in the disclosure of these names has been articulated here, we find no error in the redaction of the names under KRS 61.878(1)(a).
As for the name of the employee retrieving the e-mails for open records purposes, this may be more properly regarded as material not responsive to the request, since that name would not have constituted part of the requested records themselves, but is merely an artifact of the retrieval process. Accordingly, we need not determine whether that name is protected by KRS 61.878(1)(a). We thus find no substantive violation of the Open Records Act in LMPD's response to items 6 and 7.
Item 8. "A copy of all reports or complaints made by any person pertaining to allegations of physical or sexual abuse in the LMPD Explorers Program, whether formal or informal, and all steps taken in response[,] including the dispositions, the dates, and the parties involved"
In response to item 8, LMPD stated to Mr. Thomas: "you are aware that there is an ongoing Public Integrity Unit investigation as well as the prosecution of Brandon Wood and Kenneth Betts in Jefferson Circuit Courts [ sic ]. Therefore, any documents related to this request will be exempt pursuant to KRS 61.878(1)(h)." On appeal, Mr. Thomas asserts that he is requesting "final documents" and "it is clear PIU or LMPD is not investigating every single report of ? abuse at the present time." He claims to be aware of other cases of reported abuse in which no action was taken, or which resulted in investigations that are now closed.
LMPD denies the existence of such cases, replying that "the entirety of the Explorer Program is being investigated" criminally and that "no reports of physical or sexual abuse in the Explorer Program [exist] other than those included in the investigation of the Explorer program." With no specifics about the other reports alleged by Mr. Thomas to exist, their age, or the applicable records retention period, we can reach no conclusion about the existence of additional reports. 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.
Therefore, it appears from the record that all existing complaints of abuse in the Explorer Program are under active criminal investigation by PIU. In addition to KRS 61.878(1)(h), 2 LMPD now asserts that those records are exempt from disclosure under KRS 17.150(2), since the "investigation is in the very preliminary stages and therefore, any disclosure of the responsive records would harm the investigation by tipping off potential defendants that may be unaware they are a subject of the investigation, by revealing information of victims and witnesses that may influence their statements or testimony, and by just generally tainting the potential jury pool." In its supplemental response, LMPD elaborates: "It is important that victims, suspects and witnesses not have access to each other's stories the exposure to which could either cause a victim's allegations or a witness's observations to be questioned; or a suspect's story to be tailored to fit what he has learned from others."
Although KRS 17.150(2) should have been raised at the time of LMPD's initial response, we nevertheless consider its applicability. 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."
We recently held that possible "prejudice to potential witnesses and/or bias to a potential jury pool" is a sufficient basis to withhold intelligence and investigative reports where the prosecution remains prospective. See, e.g. , 17-ORD-144; 17-ORD-094. Since the investigation and prosecution of the allegations concerning the Explorer Program is still in an early stage, we find no basis upon which to distinguish these recent holdings. Accordingly, LMPD permissibly withheld the investigative records on the basis of KRS 17.150(2)(d). 3
Not covered by the exemption, however, under either KRS 17.150(2)(d) or KRS 61.878(1)(h), are any police incident reports or initial offense reports, including the "UOR-1 (Initial Page)," the first page of the Uniform Offense Report. "[P]olice incident reports, as opposed to investigative files, are not, generally, exempt from public inspection. " 09-ORD-205; see also 17-ORD-121. Furthermore, "the law enforcement exemption [under KRS 61.878(1)(h)] 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."
City of Fort Thomas v. Cincinnati Inquirer, 406 S.W.3d 842, 851 (Ky. 2013). As we noted in 09-ORD-205, the UOR-1 (Initial Page) does not include sensitive information "such as the 'Synopsis,' 'Modus Operandi,' 'Accused,' 'Suspects,' 'Witnesses,' 'Evidence and How Marked,' 'Investigation, ' and 'Attachments.'" Therefore, without a specific articulation of concrete harm under KRS 61.878(1)(h), or specific justification under KRS 17.150(3), LMPD has not met its burden of proof to exempt any such incident reports or initial offense reports. 4
Item 11. "A copy of all investigative files of the LMPD Public Integrity Unit and the LMPD Public Standards Unit pertaining to investigations involving LMPD employees/officers participating in the LMPD Explorer Program"
Mr. Thomas alleges that no response to this item was ever received. The record indicates, however that LMPD did respond on May 10, 2017, as follows:
In regard to request # 11, there are no Public Integrity Unit documents for inspection of employee/officers participating in [the] Explorer Program. Obviously the current Public Integrity Unit investigation concerning Brandon Wood and Kenneth Betts is currently exempt pursuant to KRS 61.878(1)(h). Further, there is not a Louisville Metro Police Department Public Standards Unit.
This response was untimely under KRS 61.880(1), which requires a substantive disposition of any request within three days, excluding weekends and legal holidays, and thus LMPD committed a procedural violation of the Open Records Act. LMPD further "acknowledges its response was deficient in that it failed to explain how the premature disclosure of the responsive records would harm the investigation."
Substantively, however, we find no violation of the Act in regard to item 11. On appeal, LMPD additionally invokes KRS 17.150(2) and incorporates the same arguments made with regard to item 8, as "[t]he investigation is ongoing and prosecution has not yet been completed." Based on the same reasoning, we find no error in LMPD's substantive disposition of item 11.
Item 12. "A copy of documents showing the relationship between the Boy Scouts of America, or any of its affiliated groups, and the LMPD Explorers Program"
Mr. Thomas likewise claims that LMPD failed to respond to this portion of the March 2017 request, and again LMPD points out that it did respond on May 10, 2017. Procedurally, we find the same violation of KRS 61.880(1) , as the response was untimely. 5 Substantively, we observe that LMPD made unspecified "[r]edactions ? to comply with the Personal Privacy Exemption contained in KRS 61.878(1)(a)." As with items 6 and 7, we find that LMPD initially failed to explain the application of the exemption, in violation of KRS 61.880(1). On appeal, however, LMPD explains that that the only redactions were "individuals['] home addresses, ID numbers, home phone numbers, birthday, and sex" as authorized by Kentucky New Era, Inc., supra. We therefore find no substantive violation of the Open Records Act in regard to item 12.
Subsequent requests: June 2, 2017; November 2, 2017; November 15, 2017
Although LMPD makes various substantive and procedural arguments regarding the three subsequent requests by Mr. Thomas' former co-counsel that are the subject of this appeal, it also indicates the existence of a threshold issue. Specifically, LMPD points out that at the time each of the subsequent requests was made, an order staying all discovery was in effect in at least one civil action concerning the allegations of sexual and/or physical abuse in the Explorer Program, in which Mr. Thomas represented plaintiffs adverse to LMPD.
KRS 61.878(1) provides:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction, except that no court shall authorize the inspection by any party of any materials pertaining to civil litigation beyond that which is provided by the Rules of Civil Procedure governing pretrial discovery [.]
(Emphasis added.) We note that this subsection "creates no free-standing exemption from open records based on the presence of litigation," such that parties to litigation would be automatically foreclosed from obtaining relevant documents through the Open Records Act. 16-ORD-176. The mere fact that a litigant or attorney "may have a special interest by reason of litigation provides no reason to grant or deny his request to inspect public records. " OAG 82-169.
Nevertheless, once a court has deemed documents not discoverable, the court's order is "the law of the case and ? 'this office is not empowered to facilitate [an] end-run around the normal discovery process.'" 17-ORD-177 (quoting 06-ORD-121). In cases where the court has ordered a stay of discovery, "attorneys acting on behalf of a litigant and persons with a substantiated shared interest in the litigation" may not circumvent the court's order by using the open records process to obtain records related to the litigation. 06-ORD-137; but see 08-ORD-235, n.8 (distinguishing 06-ORD-137 where protective order did not preclude all discovery) ;
Dep't of Corrections v. Courier-Journal and Louisville Times, 914 S.W.2d 349 (Ky. App. 1996) (rule inapplicable where records were not requested on behalf of a litigant or person with shared interest).
In this case, as in 06-ORD-137, the open records requests (in June and November 2017) were made while all discovery was stayed in a civil action pending the outcome of a motion to dismiss. It is undisputed that Mr. Thomas represents parties adverse to LMPD and other defendants in the civil actions in which discovery has been stayed; therefore, he is unambiguously "acting on behalf of a litigant. " 06-ORD-137. The only remaining question, therefore, is whether the records requested in June and November are related to the litigation in which Mr. Thomas represents clients alleging misconduct connected with the LMPD Explorer Program. The contested items from the June 2 request are: "all documents pertaining to the employment of" certain named LMPD officers, including applications and background checks; e-mails to or from persons affiliated with the Explorer Program; e-mails between the named officers and any Explorer; any communications relating to abuse in the Explorer Program; phone and text logs of anyone involved with the Explorer Program; and all e-mails to, from, or referencing the named officers from any account of a person "affiliated" with the Explorer Program.
The contested items from the November 2 request are: certain letters referenced by Major Flaherty concerning the PIU investigation involving Officer Wood and any comments received on those letters; Explorer Advisor training records; "Youth Protection guidelines" and training; Youth Explorer documents or contracts pertaining to monitors; records relating to proposed enhanced training practices for the Explorer Program and the approval of the proposals; records related to "Explorer and Parent Youth Protection Training" ; text messages between Major Flaherty and Chief Steve Conrad relating to the Explorer Program; and "[a]ny documents, information, recordings, etc. provided by any client represented by us that has previously been tendered, or has been obtained from our clients, by or to LMPD."
The November 15 request includes: all records pertaining to the employment of certain persons with LMPD; e-mails to or from those employees and Betts, Wood, and Flaherty; e-mails concerning any allegations of abuse in the Explorer Program or involving any officer ever associated with it; reports or complaints of abuse allegations in the Explorer Program; phone and text logs from all phones used by named individuals and Chief Conrad; "any audits or investigations or electronic correspondence/monitoring performed by outside or hired consultants, or any other party, relating to the Plaintiff, the attorneys for the Plaintiff, or any party to the lawsuit" ; certain "Brady Lists"; 6 and names and contact information of cadets, scouts, officers, or anyone else affiliated with the Explorer Program. The request also contains some 18 other items, all of which pertain to the Explorer Program or allegations of abuse associated with it. LMPD describes this request as "a duplicate of various other requests made by both Mr. Thomas and his former co-counsel. "
It is plain that the items in these requests align completely with the factual allegations and legal theories advanced in the civil actions Mr. Thomas is pursuing against LMPD. Furthermore, in his letter of appeal, Mr. Thomas states that his firm "represents various plaintiffs in cases against" LMPD "relating to sexual abuse of teenagers involved in the Louisville Metro Explorer's Program" and that these open records requests were made "[a]s part of our investigation." This statement is tantamount to an admission that the June and November open records requests were employed as a substitute for discovery in the civil actions.
Lastly, we note that Mr. Yates and Mr. Juanso, not Mr. Thomas, made these three requests. Therefore, Mr. Thomas' unity of interest with his former co-counsel in the civil actions against LMPD, representing the same parties, is his only reason for pursuing this appeal. This fact shows the inextricable relationship between the lawsuits and the open records requests. Accordingly, following 06-ORD-137, we find that KRS 61.878(1) precluded both Mr. Thomas and his former co-counsel from using the Open Records Act to circumvent the court orders staying discovery. Since the records were exempt under KRS 61.878(1), we find it unnecessary to address LMPD's remaining arguments as to the requests dated June 2, November 2, and November 15, 2017.
Conclusion
In regard to Mr. Thomas' request dated March 21, 2017, we find procedural violations in that LMPD did not timely respond and failed to give adequate explanations of the applicability of exceptions to open records as required by KRS 61.880(1). In addition, we find that LMPD has not met its burden of proof under KRS 17.150 or KRS 61.878(1)(h) to withhold any police incident reports, initial offense reports, or UOR-1 (Initial Page) documents that may be responsive to the March 21, 2017, request. Otherwise, we find no substantive violation of the Open Records Act by LMPD. The open records requests dated June 2, November 2, and November 15, 2017, were precluded by the stays of discovery in the civil actions against LMPD.
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 LMPD states that Brandon Wood has been indicted by a Jefferson County grand jury on seven counts of sexual abuse, and Kenneth Betts on two counts of sodomy.
2 KRS 61.878(1)(h) exempts from the Open Records Act "records of law enforcement agencies ? 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."
3 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).
4 This is not to rule out any appropriate categorical redactions pursuant to KRS 61.878(1)(a), consistent with Kentucky New Era, Inc., supra. 18-ORD-043.
5 Although it is not specifically alleged by Mr. Thomas, we find that LMPD's responses to items 6, 7, and 8 of the March 21 request were also untimely. The record reflects no final disposition of item 8 until May 3, 2017; of item 6 until September 28, 2017; or of item 7 until October 6, 2017.
6 "Brady list" refers to impeachment evidence against the credibility of police officers, required to be disclosed under Brady v. Maryland, 373 U.S. 83 (1963). See generally Jonathan Abel, " Brady's Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team," 67 Stan. L. Rev. 743 (2015).