Opinion
Opinion By: Andy Beshear, Attorney General; J. Marcus Jones, Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the McCreary County Sheriff's Office ("Sheriff's Office") violated the Kentucky Open Records Act in denying the June 7, 2016, request of Kay Hensley, Esq. (Appellant). We find that the Sheriff's Office did not violate the Act when it denied Appellant's request for a toxicology report that it did not possess or control. However, the Sheriff's Office violated the Act because it failed to advise Appellant that it did not possess the toxicology report as required by KRS 61.880(1), and because it failed to properly direct her to the agency that had custody and control of the report as required by KRS 61.872(4). The Sheriff's Office failed to meet its burden of proof under KRS 61.878(1)(h) and KRS 61.880(2)(c) and failed to justify withholding the remaining responsive records in its possession.
On September 10, 2018, Appellant submitted a request to the Sheriff's Office for records "seeking information related to a toxicology report taken at the scene of said accident." Specifically, Appellant stated that she was seeking "[a]ny and all recordings, written logs and other documentations pertaining to the automobile accident that occurred on April 9, 2018 in McCreary County, Sterns, Kentucky on Hwy 27, including the toxicology report...taken at the scene." Appellant also stated, "[i]f you are not the records custodian for this information, please forward this request to the appropriate person."
The Sheriff's Office did not respond to Appellant's request for records, but instead forwarded the request to the McCreary County Attorney's Office. On September 13, 2018, McCreary County Attorney Conley Dale Chaney responded to the Sheriff's Office. Mr. Chaney stated that, "McCreary County Deputy Sheriff Charlie Perry ('Deputy Perry') has requested a probable cause determination relating to his investigation of the motor vehicle accident referenced above." He then stated "I am presently unable to comply based on my reading of KRS 61.878(1)(a) and (h). Further investigation is needed to decide as to whether to recommend a criminal charge." Mr. Chaney stated that he would contact Appellant after the probable cause determination is completed to let her know how to proceed. The Sheriff's Office sent a copy of Mr. Chaney's letter to Appellant in lieu of a written response. On September 28, 2018, Appellant appealed the apparent denial of her request.
Pursuant to KRS 61.880(2)(c) 1 and 40 KAR 1:030, Section 3, 2 this office requested copies of the responsive records for purpose of in camera review. Due to its apparent reliance on the open records exception in KRS 61.878(1)(h), we asked that the Sheriff's Office address the factual basis for applying the exemption, and the risk of harm to the agency in the prospective action. On October 12, 2018, Assistant County Attorney Michele Wilson Jones responded to our request, stating the Sheriff's Office did not have a copy of the toxicology report when it received Appellant's September 10 request for records. Ms. Jones stated Deputy Perry turned over the toxicology report to the County Attorney's Office on September 5. Ms. Jones attached additional records for the in camera review, but she did not provide any information related to the harm to the agency in the prospective action.
The Sheriff's Office did not violate the Act when it denied Appellant a copy of the requested toxicology report. On appeal, Ms. Jones clearly stated that the Sheriff's Office provided the only copy of the toxicology report to the County Attorney before the request for records. The right to inspect only attaches if the records in dispute are "prepared, owned, used, in the possession of or retained by a public agency. " KRS 61.870(2); 02-ORD-120, p.10. Since the Sheriff's Office did not possess or retain a copy of the toxicology report, there was no violation of the Act when it did not provide a copy in response to Appellant's request.
However, the Sheriff's Office violated KRS 61.880(1) 3 when it failed to issue a written response that advised Appellant that it did not possess a copy of the toxicology report. The fact that the Sheriff's Office no longer possessed the toxicology report was "tantamount to a denial and...it [was] incumbent on the agency to so state in clear and direct terms." 01-ORD-38, p. 9; 17-ORD-024. KRS 61.880(1) required the Sheriff's Office to state that fact to the Appellant in the initial written response. While it is obvious that a public agency "cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient. " 02-ORD-144, p.3; 17-ORD-024. As such, the Sheriff's Office's initial written response to the open records request was deficient.
The initial written response violated the Act because it failed to direct Appellant to the County Attorney's office. KRS 61.872(4) states "[i]f the person to whom the application is directed does not have custody or control of the public record requested, that person shall notify the applicant and shall furnish the name and location of the official custodian of the agency's public records. " The Sheriff's Office impliedly directed Appellant to the County Attorney's Office by sending her a copy of his letter. However, the letter did not advise Appellant that the Sheriff's Office no longer has "custody and control" of the toxicology report. The letter also failed to provide Appellant with "the name and location of the official custodian" of records for the County Attorney. The initial written response violated the Act by omitting these two required advisories.
The Sheriff's Office relies on the County Attorney's invocation of KRS 61.878(1)(h) to withhold the remaining records for the accident investigation. That exception authorizes law enforcement agencies to withhold:
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, 850 (Ky. 2013), the Kentucky Supreme Court held that in order to invoke KRS 61.878(1)(h), a law enforcement 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. Unlike the files of Commonwealth's and county attorneys, investigative files of law enforcement agencies are not categorically exempt from disclosure. Rather, when records of law enforcement agencies are at issue, "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." City of Fort Thomas, 406 S.W.3d at 851. "A concrete risk, by definition, must be something more than a hypothetical or speculative concern." Id.
The Sheriff's Office did not demonstrate that premature release of the remaining responsive records in its possession would harm it in some articulable way. The initial response of the County Attorney showed that the records were compiled for a law enforcement purpose, and that a law enforcement action is prospective. However, the Sheriff's Office did not address the potential harm of premature release of the records in response to the Attorney General's request under KRS 61.880(2)(c). As such, the Sheriff's Office did not adequately demonstrate the harm that would result from disclosure as required to satisfy its burden of proof. See KRS 61.878(1)(h). In addition, a public agency must cite the applicable statutory exception, if any, and provide a brief explanation of how that exception applies to the records being withheld, per KRS 61.880(1), to justify its denial per KRS 61.880(2)(c). 04-ORD-106, p. 6; 18-ORD-035. Accordingly, the Sheriff's Office violated the Act when it withheld the responsive records in its possession that relate to the traffic accident investigation.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court per 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.
Footnotes
Footnotes
1 KRS 61.880(2)(c) states: "On the day that the Attorney General renders his decision, he shall mail a copy to the agency and a copy to the person who requested the record in question. The burden of proof in sustaining the action shall rest with the agency, and the Attorney General may request additional documentation from the agency for substantiation. The Attorney General may also request a copy of the records involved but they shall not be disclosed."
2 40 KAR 1:030 Section 3 states: "Additional Documentation. KRS 61.846(2) and 61.880(2) authorizes the Attorney General to request additional documentation from the agency against which a complaint is made. If documents thus obtained are copies of documents claimed by the agency to be exempt from the Open Records Law, the Attorney General shall not disclose them and shall destroy the copies at the time the decision is rendered."
3 KRS 61.880(1) states: "If a person enforces KRS 61.870 to 61.884 pursuant to this section, he shall begin enforcement under this subsection before proceeding to enforcement under subsection (2) of this section. Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days, excepting Saturdays, Sundays, and legal holidays, after the receipt of any such request whether to comply with the request and shall notify in writing the person making the request, within the three (3) day period, of its decision. An 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 response shall be issued by the official custodian or under his authority, and it shall constitute final agency action."