Opinion
Opinion By: Andy Beshear,Attorney General;Michelle D. Harrison,Assistant Attorney General
Open Records Decision
The question presented in this appeal is whether the Estill County Sheriff's Department ("Department") and Estill County 911 Dispatch Center ("Center") violated the Open Records Act in denying Justin L. Knappick's November 9 and 21, 2018, requests for the following:
1. All police reports, dispatch logs, citations, or other documentation evidencing that the sheriff or any police deputy patrolled, responded to calls, and/or traveled to any property along Mountain Springs Road in Estill County, including 2907 Mountain Springs Road, from August 24, 2014, to present.
2. All police reports, dispatch logs, citations, or other documentation regarding police presence/activity at 2907 Mountain Springs Road, including any police presence/activity that led to the arrest of Kevin Moes at said address on October 12, 2018, for possession of a firearm by a felon.
3. All police reports, dispatch logs, citations, or other documentation regarding police presence/activity on Mountain Springs Road, including the police presence/activity that led to the arrest of Kevin Moes for arson in September/October 2018.
By letter dated November 26, 2018, (then) County Attorney Rodney G. Davis confirmed receipt of Mr. Knappick's November 21, 2018, request. Mr. Davis advised Mr. Knappick that his request "must be denied as there is an open criminal investigation related to the matters you are requesting. KRS 61.878(1)(h) specifically exempts records related to law enforcement agencies involved in an investigation of an individual." Mr. Davis asserted that because "there are pending criminal charges these record[s] are not subject to an open records request." He further stated, "the majority of the records you have requested are not in the possession of the [Center]. The [Center] does not keep any criminal records such as citations or police reports, those are kept by the individual agencies."
By letter directed to Mr. Davis on December 7, 2018, Mr. Knappick disputed the Center's reliance on KRS 61.878(1)(h), citing City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013) and prior decisions by the Office of the Attorney General ("OAG") construing that exception. He emphasized that KRS 61.878(1)(h) exempts only records that were directly compiled as part of a specific detection or investigative process rather than records that were merely segregated in connection with a specific investigation. "Simply put," he continued, "it cannot be the case that every record of police conduct on Mountain Springs Road was actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigative process." Accordingly, Mr. Knappick reiterated his original request, also citing KRS 61.878(4). Mr. Knappick noted that he directed his original request dated November 9, 2018, to the Department; in response, the Department directed him to send his request to the Center, which he did on November 21, 2018. Mr. Knappick did not receive any response to his December 7, 2018, reply letter. 1
Upon receiving notification of Mr. Knappick's December 18, 2018, appeal, Mr. Davis stated that his initial response is a "fair representation of the agency's position in this matter." He generally reiterated that "pending criminal matters" relate to Mr. Knappick's request and the records therefore fall within "an exception" to the Open Records Act. Further, he asserted that Mr. Knappick's request "is not sufficiently and narrowly tailored as to allow a reasonable response. Many of the records he requested are not within the control of either agency." 2 Mr. Davis indicated that Jason D. Riley was the newly elected Estill County Attorney; he requested that Mr. Riley also be permitted to respond. Accordingly, this office extended the deadline for agency response in order to afford Mr. Riley the opportunity to respond on behalf of his client.
By letter January 11, 2018, Mr. Riley stated that, based upon his "examination of the filings," the Department and the Center "should be considered law enforcement agencies and/or administrative agencies involved in adjudication of law enforcement and that the information requested is information compiled in the process of investigating statutory violations." He further argued that disclosure of the records in dispute would be premature "as there is pending law enforcement action. Therefore, information requested concerning a specific individual, or that would release information regarding any pending criminal investigation, should be denied." According to Mr. Riley, this would include "patrol routes/times, dispatch logs, response logs, and other such information that are or may be used in the ongoing criminal investigations."
When a public agency relies upon KRS 61.878(1)(h) in denying access to public records, the need for specificity is "particularly compelling." 00-ORD-196, p. 3. In construing KRS 61.878(1)(h) , the Attorney General has repeatedly observed that, "In order to successfully raise this exception, a public agency must satisfy a three-part test." 95-ORD-95, p. 1. First, a public agency must establish that it is a law enforcement agency or a public agency involved in administrative adjudication. Id. Next, it must establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Id. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Id. , pp. 1-2. Unlike any of the other exceptions, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884. The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met." 95-ORD-95, pp. 2-3. Applying this analysis, the Attorney General has rejected public agencies' reliance upon KRS 61.878(1)(h) in a series of decisions. See 94-ORD-35; 02-ORD-179; 05-ORD-178; 07-ORD-139; 11-ORD-134.
In City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, the Kentucky Supreme Court addressed in detail the "law enforcement exception" codified at KRS 61.878(1)(h). Prior to beginning a substantive analysis of the issues presented, the Court emphasized that a public agency bears the burden of proving "that any decision to withhold responsive records was justified under the Act." Id. at 848. The Court noted that "a police department's investigatory file is not categorically exempt from disclosure under the Open Records Act merely because it pertains to a prospective enforcement action ." Id. at 849 (emphasis added). Indeed, the "plain terms" of the Act "do not provide for such a categorical exemption." Id. In so holding, the Court expressly rejected the City's position that merely because the conviction of the individual whose investigative file was at issue remained subject to collateral challenge, its entire investigative file was exempt. Id. The Court further held that KRS 61.878(1)(h) is properly 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." Id. at 851 (emphasis added).
A concrete risk of harm "by definition, must be something more than a hypothetical or speculative concern." Id. at 851. "[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)). The Court went on to note that a public agency should provide the requester 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. ; 18-ORD-177. In other words, the public 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." 18-ORD-177, p. 9.
The Department is unquestionably a law enforcement agency; the record here remains unclear as to whether the Center is properly characterized as either a law enforcement agency or agency involved in administrative adjudication, which is the threshold requirement for invocation of KRS 61.878(1)(h). Even assuming the Center cited KRS 61.878(1)(h) on behalf of the Department or a different law enforcement agency, however, the fact remains that neither the Department nor the Center has otherwise justified the denial. 3 The agencies have not demonstrated that all of the records being sought were "compiled in the process of detecting and investigating statutory or regulatory violations." To satisfy this element, a public agency must do more than simply assert that the records "may be a component of the criminal case or possible evidence of the crime(s)." See 09-ORD-012 (quoting OAG 89-11)(KRS 61.878(1)(h) requires showing that records are "those actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigative process"). Records that satisfy this element do not include those "which were 'segregated' in connection with an investigation [but were] not made uniquely in a specific detection and investigation process." Id. ; 05-ORD-078; 17-ORD-230. The agencies did not choose to address Mr. Knappick's December 7, 2018, reply letter emphasizing this point and summarizing the relevant authorities. On appeal, the agencies merely restated the statutory language. Accordingly, the record lacks any evidence by which to conclusively determine whether some or all existing responsive public records would satisfy this element of KRS 61.878(1)(h).
Lastly, the agencies have not satisfied the final requirement of demonstrating the harm that would result from premature disclosure as to all of the records. The Department and the Center have repeatedly and generally stated that a pending criminal matter/law enforcement action precludes either agency from releasing any of the related investigative records; the agencies relied on the pending nature of the criminal investigation exclusively in arguing that disclosure of any responsive documentation would be premature and therefore harmful merely because an enforcement action remains prospective. Similarly, in 17-ORD-213, the agency had generically argued that release of the single responsive document "would compromise the investigation by revealing the nature or scope of the information sought in that investigation." Id. , p. 2. This office again finds that such a statement "could be made about any piece of evidence in any criminal investigation. There is nothing in the record to indicate how the release of [any] particular piece of evidence, as distinct from any other type of evidence, would have a deleterious effect on the investigation." Id. , pp. 4-5. This 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). City of Fort Thomas, supra, 406 S.W.3d at 852." 17-ORD-213, p. 5; 17-ORD-046.
The initial burden of the Department and the Center, under City of Ft. Thomas , was 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; 18-ORD-177. In so doing, 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. (citation omitted). However, the initial response provided on behalf of the Center vaguely stated the "majority" of the records "are not in the possession of the [Center]. The [Center] does not keep any criminal records such as citations or police reports, those are kept by the individual agencies." 4 The record is unclear as to why the Department advised Mr. Knappick to submit his request to the Center in light of this fact; likewise, the record contains no information regarding which "individual agencies" currently possess or maintain any such responsive documents. Counsel stated on appeal that "many" of the records Mr. Knappick requested "are not within the control of either agency." The question remains as to whose control the unspecified records are or may be within.
Here, as in 17-ORD-213 and 18-ORD-177, the agencies failed to identify a concrete, non-speculative risk of harm arising from particular records or categories of records. Instead of the specific factual justification required under City of Ft. Thomas v. Cincinnati Enquirer , the agencies have "alleged 'no more than an entire file's general relation' to the prospective trial." 18-ORD-177, p. 10. The mere fact that a criminal investigation is pending, without more, is "insufficient to show a 'concrete risk of harm' resulting from the release of a particular record[s]." 17-ORD-213, p. 5. Under the circumstances presented, this office cannot find the Department or the Center justified their denials of Mr. Knappick's identical requests on the basis of KRS 61.878(1)(h). See KRS 61.880(1) and (2)(c); 16-ORD-084; 18-ORD-177; 18-ORD-226.
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.
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