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 Lexington-Fayette Urban County Government ("LFUCG") Division of Police ("Division") violated the Open Records Act in its disposition of Tanyqua Oliver's June 7, 2018, request for copies of "documents, notes, recordings, statements, involved parties/organizations, findings and anything else related to" her internal affairs complaint against Officer Timothy Ball (concerning a matter he investigated in 2006), as well as "documents, notes, findings, recordings, statements, involved parties/organizations and anything else related to" a pending child sexual abuse case from 2006 in which she was the victim. For the reasons that follow, we find that the Division violated the Act.
On June 11, 2018, the Division responded to the request for the internal affairs file by providing a copy of "the notification from the Lexington Police Department's Public Integrity Unit, the front page of the formal complaint which contains a description of the allegations, Chief Lawrence Weather's [ sic ] recommendations and the associated Memoranda containing notification of final action regarding the complaint and containing the Public Safety Commissioner's approval of the recommendation. " The Division gave no explanation for why it was not providing other records relating to the investigation, nor did it cite any exception to the Open Records Act under KRS 61.878(1), beyond stating that "[p]ersonal identifiers have been removed from the provided documentation pursuant to KRS 61.878(a) [ sic ]" and quoting the language of KRS 61.878(1)(a) . 1
As to the request for the criminal investigation records, the Division responded:
[A]ccording to our records incident 2006-76129 is still considered an open investigation. Therefore; the entire case file is not available to you pursuant to KRS 61.878(1)(h) which states:
[language of statute quoted]
However, in an effort to provide documentation referencing this incident, and as you are the listed victim, our office is releasing the corresponding dispatch log and the victim's copy of the report.
You may wish to submit a new request once the case is closed. A case is considered closed once prosecution is complete or declined and/or open appeals are decided.
(Emphasis omitted.) This office received Ms. Oliver's appeal against LFUCG on July 5, 2018.
Procedural violation of KRS 61.880(1)
With regard to the internal investigation, KRS 61.880(1) provides that "[a]n agency 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. " The Division's failure to specify an applicable exception under KRS 61.878, or to explain its application, in its response relating to the internal affairs file, constituted a procedural violation of the Open Records Act. 14-ORD-036.
Applicability of KRS 61.878(1)(i) and (j)
In response to this appeal, LFUCG cites City of Louisville v. Courier-Journal & Louisville Times Co., 637 S.W.2d 658 (Ky. App. 1982) for its argument that "[o]nly the initiating complaint and formal disposition are required to be released" from an internal affairs file "unless the file is incorporated into the decision maker's final decision. " City of Louisville deals with the application of KRS 61.878(1)(i) and (j), which create exceptions to the Open Records Act for, respectively:
(i) Preliminary drafts, notes, correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency; [and]
(j) Preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended[.]
In University of Kentucky v. Courier-Journal & Louisville Times Co., 830 S.W.2d 373, 378 (Ky. 1992), the Kentucky Supreme Court made clear that "materials that were once preliminary in nature lose their exempt status once they are adopted by the agency as part of its action." In 01-ORD-47, we summarized the manner in which "preliminary" records under KRS 61.878(1)(i) and (j) may retain or lose their exemption after final agency action is taken:
Until final administrative action is taken, or a decision is made to take no action, the requested records are protected by KRS 61.878(1)(i) and (j). If the records are adopted as part of that final action, they will forfeit their preliminary characterization. If not adopted, they will retain their preliminary character.
It is not necessary that the record be explicitly adopted or incorporated by reference, so long as it constitutes a basis for the final agency action. "In our view, the courts purposefully employed the broader concept of 'adoption' rather than 'incorporation,' relative to preliminary investigative reports and records, to avoid a narrow, legalistic interpretation." 01-ORD-83 (citing City of Louisville, supra).
We have recently addressed the argument, which LFUCG advances, that all records constituting part of an internal affairs investigation are exempt from disclosure under KRS 61.878(1)(i) and (j) except the initial complaint and final disposition. In 16-ORD-106, relying on our previous decision in 15-ORD-067, we rejected that argument, finding:
[Internal Affairs] based its determination, which the Commissioner adopted, on the facts and evidentiary conclusions of the investigator, who found in each instance that the allegations were substantiated. Accordingly, records [composing] the subject investigations were ultimately adopted by the final decision maker and therefore forfeited their preliminary characterization.
We further held that where not all the participants in the investigation and review process agree as to an outcome, "the opinions and recommendations . . . that were not relied upon or adopted by the Commissioner . . . can be properly withheld. " 16-ORD-106. Lastly, we stated:
[The] files also include records that are similar to "administrative records opening the file" or "statements of the law" (statutes and policies. . .), checklists, etc.[,] which cannot be properly characterized as drafts, notes, or recommendations, nor do they contain any opinions or recommendations even if characterized as memoranda. Thus, any such responsive documents were also improperly withheld.
Id. (citing 15-ORD-170); see also 18-ORD-115.
Here, we requested the disputed internal affairs records for in camera review pursuant to KRS 61.880(2)(c), and LFUCG complied with the request. While we cannot disclose the specific contents of these confidentially disclosed records, we can provide general descriptions. 01-ORD-103. The Public Integrity Unit's file contains miscellaneous documents such as an Index, "Formal Complaint Notifications/ Signed Acknowledgment Form," "Officer's Copy of KRS 95.450 & KRS 15.520," and the second page of the Formal Complaint (consisting merely of signatures and dates), all of which fall under the above-mentioned categories of "administrative records" or "statements of the law" and therefore cannot be withheld from inspection under KRS 61.878(1)(i) or (j).
As to the "preliminary" character of the remaining internal affairs records, LFUCG argues that "most of the file was not even reviewed by the final decision maker, making it exempt under the [ sic ] City of Louisville." We observe, however, that in a May 29, 2018, letter to Ms. Oliver notifying her of the final disposition, Lt. Tommy Perkins stated:
After reviewing the investigation in its entirety , Chief Lawrence Weathers has determined this charge was "unfounded" due to insufficient evidence. . .. In addition, Public Safety Commissioner Kenneth Armstrong reviewed this complaint and concurred with the decision.
(Emphasis added.) While LFUCG fails to specify which documents Commissioner Armstrong personally reviewed, it is evident that the commissioner merely adopted a determination by Chief Weathers, which was based on the chief's review of the entire investigation . Therefore, nothing in the investigative file is automatically excluded (as LFUCG argues) from the possibility of having formed a basis for the final determination. Rather, we must ascertain which records were in fact adopted as the basis of final agency action.
Chief Weathers' memorandum to Commissioner Armstrong dated May 17, 2018, which the Division provided to Ms. Oliver, reads in part as follows:
I am recommending this case be administratively closed as "Unfounded" due to insufficient evidence for violation of General Order 73-2/J, Disciplinary Procedures, Appendix B, Operational Rules, Section 1.48, Inappropriate Action. Upon review of this complaint, I find that there does not appear to be sufficient evidence produced to sustain this complaint of an improper investigation. The complaint that no charges were filed is unfounded due to the investigation revealing the responsible adult did not want to proceed.
A record "is adopted as the basis of final action insofar as the final action 'necessarily stem[s] from' that document." 10-ORD-034 (quoting City of Louisville, supra, 637 S.W.2d at 660). Accordingly, those investigative records which form a necessary basis for Chief Weathers' conclusions that (1) there was insufficient evidence of an improper investigation, and (2) the complaint of no charges was unfounded because the responsible adult did not wish to proceed in 2006, were adopted for purposes of KRS 61.878(1)(i) and (j).
The first item in the file is the "Case File Summary," a May 3, 2018, memorandum from Lt. Perkins to Chief Weathers, consisting of 11 pages, summarizing the entire Public Integrity Unit investigation and making the same findings that were ultimately made by Chief Weathers. This document clearly formed the basis for final agency action and thus can no longer be withheld as "preliminary."
The Case File Summary, in turn, is instrumental in identifying the additional evidence in the file that constituted the basis of Lt. Perkins' findings. As to the finding on the complaint of an improper investigation, Lt. Perkins relied in part upon interviews with current and former members of the Crimes Against Children Section, an interview with Officer Ball himself, and an interview with Ms. Oliver's mother, Tammel Thomas, all of which are transcribed in the file. Since witness interview transcripts lose their preliminary characterization when adopted as the basis for final action, we find that the transcribed statements of Lt. Jesse Harris, Detective Dilyana Nicolova, Sgt. Daniel Truex, Officer Timothy Ball, and Ms. Tammel Thomas were improperly withheld under KRS 61.878(1)(i) and (j). 10-ORD-046.
Additionally, Lt. Perkins relied upon certain records from the 2006 criminal investigation; specifically, a nine-page "CPS Narrative Outline" from the Department for Community Based Services dated June 16, 2006, 2 and an unsigned page of narrative notes in two different handwritings dated from May 5 to June 2, 2006. Those records, having been adopted as part of the basis of final agency action, no longer retain a preliminary character under KRS 61.878(1)(i) or (j) and should not have been withheld on that basis.
With regard to the complaint of a failure to file criminal charges, Lt. Perkins' summary specifically relied upon Ms. Thomas' interview for his finding of "unfounded, " as well as the interviews with Sgt. Truex, Detective Nicolova, and Officer Ball. Accordingly, those interview transcripts, as well as that of Ms. Thomas, were adopted as part of the basis for final agency action on this aspect of the complaint, and thus are no longer "preliminary" under KRS 61.878(1)(i) or (j).
Adopting the reasoning in 16-ORD-106 and 15-ORD-067 (copies attached), we find that the Division of Police wrongly construed KRS 61.878(1)(i) and (j) as requiring only disclosure of the initial complaint and final disposition of the internal affairs case. Therefore, the Division improperly withheld both those records which were merely "administrative" or "statements of the law" and those which formed the basis for final agency action. 3
Applicability of KRS 61.878(1)(h)
On appeal, LFUCG invokes KRS 61.878(1)(h) with regard to both the internal affairs investigation and the criminal case file. LFUCG argues that "[t]he contents of the entire internal affairs investigation file was turned over to the Commonwealth's Attorney's Office as it contained witness statements, alleged factual allegations and circumstances regarding an open criminal case . . . scheduled for trial in the latter part of 2018." As to the criminal file, LFUCG asserts that all records are "exempt . . . as an open investigation."
KRS 61.878(1)(h), sometimes known as the "law enforcement" exception to the Open Records Act, permits 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; however, records or information compiled and maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, 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.
(Emphasis added.)
In City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013), the Supreme Court of Kentucky held that, unlike the investigation and litigation files of Commonwealth's and county attorneys, investigative files of law enforcement agencies are not categorically exempt from disclosure. Rather, when a record pertains to a prospective law enforcement action,
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 .
City of Ft. Thomas, 406 S.W.3d at 851 (emphasis added). "[T]he mere fact that an enforcement action remains prospective is [not] enough to establish that disclosure of anything from a law enforcement file constitutes 'harm' under the exemption. " Id. at 852 (overruling in part Skaggs v. Redford, 844 S.W.2d 389 (Ky. 1992)).
Noting the public agency's burden of establishing the applicability of an exception to the Open Records Act, the Court stated:
[T]he court must hold the agency to its burden of proof by insisting that the agency make a sufficient factual showing . . . to justify the exemption. The agency should provide the requesting party and the court with sufficient information about the nature of the withheld record (or the categories of withheld records) and the harm that would result from its release to permit the requester to dispute the claim and the court to assess it.
Id. The agency must identify specific records or categories of records "the particular nature of which renders them exempt. [T]he law enforcement exemption cannot be invoked without at least that minimum degree of factual justification. . .." Id. (emphasis added). Thus, a concrete, non-speculative risk of harm must be attributed to a particular record or records.
With regard to the internal affairs file, LFUCG argues that "[r]elease of documents that have been turned over to the Commonwealth's Attorney for use of prosecution at trial could deny the defendant a fair trial and taint any prospective jury pool if the facts, evidence and witness statements were made public prior to the trial." LFUCG expressly asserts, however, that "[i]t is unknown what portion and witness statements [ sic ] of the file will be used by the Commonwealth's Attorney in the upcoming criminal trial." Similarly, with regard to the criminal file, LFUCG's entire argument consists of the statement that "[r]elease of the police investigation including witness statements, factual evidence and circumstances regarding the alleged crime, if made public, would deny the defendant a fair trial and taint any prospective jury pool. "
Under KRS 61.880(2)(c), a public agency bears the burden of proof to sustain any denial of access to public records. Furthermore, "[t]he 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.
In 14-ORD-139, we found that the agency had articulated the types of harm that would result specifically from pretrial disclosure of a 911 recording. In this case, by contrast, LFUCG's argument does not explain, as required by City of Ft. Thomas , what concrete, non-speculative risk of harm is attached to particular categories of records. Instead, it merely groups together the entirety of the criminal file as "witness statements, factual evidence and circumstances," and the entirety of the internal affairs file as "facts, evidence and witness statements," making generalized assertions that any records from either file could "deny the defendant a fair trial" or "taint any prospective jury pool. " Moreover, as to the internal affairs file, LFUCG explicitly professes its inability to identify what, if any, portions of that file may even be used in the prosecution.
It is the agency's initial burden under City of Ft. Thomas , at a minimum, to "identif[y] the particular kinds of records it holds and [explain] how the release of each assertedly exempt category would harm the agency in a prospective enforcement action. " 406 S.W.3d at 851. The Court explained that, in doing so:
[the agency] must itself identify and review its responsive records, release any that are not exempt, and assign the remainder to meaningful categories. A category is meaningful if it "allows the court to trace a rational link between the nature of the document and the alleged likely [harm to the agency]."
Id. (quoting Bevis v. Dep't of State, 801 F.2d 1386, 1389 (D.C. Cir. 1986)).
Far from identifying a concrete, non-speculative risk of harm arising from particular records or categories of records, LFUCG's "argument is generic and could equally be applied to 'anything from a law enforcement file'; that is exactly what the Supreme Court indicated was not sufficient under KRS 61.878(1)(h)." 17-ORD-213 (quoting City of Ft. Thomas, 406 S.W.3d at 852). The Supreme Court has declined to recognize, under KRS 61.878(1)(h), "a blanket exemption for police files regardless of their contents." City of Ft. Thomas, 406 S.W.3d at 850. Here, instead of the specific showing required by City of Ft. Thomas , LFUCG has alleged "no more than an entire file's general relation" to the prospective trial. Id. at 851. Under these circumstances, we cannot find that LFUCG has met its burden of sustaining its denial of the entire internal affairs file beyond the initial complaint and final disposition, or of the entire criminal investigative file beyond the dispatch log and report, pursuant to KRS 61.878(1)(h). 4
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 proceeding.
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