Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The issue presented in this appeal is whether the City of Burgin ("City") violated the Open Records Act in denying a request for records submitted by Katrina Sexton, Ed. D. ("Appellant"). For the reasons stated below, we find that the City met its burden of proof under KRS 17.150(3) 1 and stated a specific reason for withholding a requested record pursuant to KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(1). 2
On September 25, 2018, Appellant appealed the denial of a request for a copy of a Law Enforcement Officers Safety Act ("LEOSA") application form. 3 Appellant states that the LEOSA form had come under review during the September 11, 2018 meeting of the Burgin city council. Appellant describes a dispute that arose regarding the LEOSA form:
"[A] motion was made and passed by the council to approve [a former Police Chief's] LEOSA request. In turn, [Burgin Mayor George Hensley] refused to sign the document[.] Because the Mayor refused to sign the form, the city council...agreed that one of its members would sign the form on behalf of the governing agency. [Burgin Chief of Police Case Rucker] and Mayor Hensley claim that the forms designate the Mayor or the Commanding Officer as the only persons authorized to sign the LEOSA form? however, ...I was authorized by the city council to sign[.] Subsequently, ...the Kentucky State Police (KSP)...approved [the] application with my signature as the governing agency's designee."
Appellant states that the Mayor and Chief Rucker "stated openly and repeatedly that they will be seeking civil or criminal charges against myself for signing the LEOSA forms[.]" Following the meeting, Appellant made a verbal request for a copy of the LEOSA application. However, the Chief Rucker denied the request. Appellant immediately submitted a handwritten open records request seeking the LEOSA application, and addressed the request to the City, "Police [department], City Hall, or any other city record holder."
On September 14, 2018, the City denied the request pursuant to KRS 17.150(2) and KRS 61.878(1)(1). The City stated that the Police Chief "has a scheduled appointment with the Commonwealth Attorney, Richie Bottoms on Monday, October 17, 2018 at 10:00 a.m. This meeting will be to confirm what charges are going to be charged." The City stated Chief Rucker would provide Appellant a copy of the LEOSA application "based on the advice of the Commonwealth Attorney and whether [he] feels it would impede or harm the investigation." The City attached a copy of opinion 08-ORD-001 to its response in support of its denial.
KRS 17.150(2) states that "intelligence 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." The exemption in KRS 17.150(2) does not require the agency to demonstrate a showing of harm, it merely requires the agency to provide a specific reason for withholding the records. 14-ORD-228; 17-ORD-242. In establishing this burden of proof, KRS 17.150(3) states, "[w]hen 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 City provided a specific reason for withholding the LEOSA form. The response alluded to Chief Rucker's investigation into Appellant's signature of the form. The City also indicated that the Commonwealth's Attorney was reviewing the matter to determine whether or not to prosecute. In 17-ORD-265, we found that the Louisville Metro Police Department provided the specificity required under KRS 17.150 by stating that the agency "is coordinating and communicating with the Commonwealth Attorney's Office, which will make a final decision on whether or not prosecution is appropriate." 17-ORD-265, p. 2. "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." 14-ORD-228. Accordingly, the City met the requirements of KRS 17.150(3) when it established that a decision not to prosecute had not been made.
However, the City cannot indefinitely postpone Appellant's access to the LEOSA application under KRS 17.150(2), although it adequately substantiated the use of the exemption in this case. See 17-ORD-265; 18-ORD-027. KRS 17.150(3) states "[e]xemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section." Accordingly, KRS 17.150(3) does not permit a criminal justice agency to permanently withhold "intelligence and investigative" reports. 17-ORD-265; 18-ORD-027. It would be inappropriate for us to substitute our judgment for that of the law enforcement agency regarding the timing of its investigations. However, we have cautioned law enforcement agencies that they should avoid invoking the exceptions of KRS 17.1050 "to delay or impede the exercise of rights" granted by the Open Records Act. See 05-ORD-058; 08-ORD-070. Therefore, upon completion of the law enforcement investigation, or a determination by the Commonwealth's Attorney whether or not to prosecute, the LEOSA application will be subject to disclosure unless specifically excluded from application of the Act by another statutory exception.
A party aggrieved by this decision shall 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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