Opinion
Opinion By: Andy Beshear,Attorney General;Gordon Slone,Assistant Attorney General
Summary : Franklin County Attorney properly withheld criminal investigation record under prosecutors' exemption, but initially failed to provide a detailed explanation as to the basis for withholding the record. Appellant's claim that County Fiscal Court should have had a copy of the requested record and provided it to her was not a perfected appeal and this office therefore does not have jurisdiction to decide that matter. County Jailer did not have a copy of the requested record and could not provide it to Appellant. County Jailer violated KRS 61.880(1) by failing to respond within three days of request as to whether it would comply with request for records.
Open Records Decision
The primary question presented in this appeal is whether the Franklin County Attorney violated the Open Records Act in denying The State Journal's requests for a copy of an investigative report of alleged sexual misconduct by the former chief deputy jailer. For the reasons stated below, we find that the Franklin County Attorney properly withheld the report as a criminal investigation record, but initially failed to adequately explain the basis for denying release of the record. Appellant's claim that the County Fiscal Court should have had a copy of the report and provided it to her was not a perfected appeal to this office and thus this office does not have jurisdiction to decide that complaint. County Jailer did not violate the Act in denying the request for a record he did not possess. County Jailer and County Attorney violated KRS 61.880(1) by failing to respond to a request to the Jailer within three days stating whether the agency would comply with the request.
By letter dated August 2, 2018, Chanda Veno, News Editor, The State Journal ("Appellant") requested from the Franklin County Attorney a copy of "the completed report from the investigation of a sexual harassment claim against Kelly Rouse." 1 The Franklin County Attorney ("County Attorney" ) responded by letter dated August 10, 2018, and stated that the records were exempt from disclosure pursuant to KRS 61.878(1)(i) and (j) as preliminary notes and attorney-client work product, and also "per KRS 61.878(1)(h), investigation records in the possession of the County Attorney are exempt. " Appellant sent a letter, dated August 14, 2018, to the County Attorney requesting that he explain how the claimed exemptions applied to the records withheld. The County Attorney responded by email on August 27, 2018, stating that the record of investigation "consists of notes and correspondence with private individuals other than correspondence which is intended to give notice of final action of a public agency. The record is also a preliminary memorandum in which opinions are expressed or policies formulated and are in the nature of attorney-client work." The County Attorney also stated, "Lastly, and most significantly, per KRS 61.878(1)(h), investigation records in the possession of the County Attorney are exempt from disclosure. The records requested were county attorney records pertaining to criminal investigations or potential criminal litigation. ? ."
Appellant then sent a records request, dated August 30, 2018, to Rick Rogers, Franklin County Regional Jail ("Jailer" ), requesting the investigative report and other records. The Jailer responded on September 4, 2018, but did not address the request for the investigative records. On September 13, 2018, the County Attorney responded to Appellant's request to the Jailer, stating that the investigative report is in the "custody and possession of the office of the County Attorney. " The County Attorney stated that, after consulting with the Jailer, he determined that "a limited release although otherwise exempt, is appropriate." 2 The County Attorney further stated:
Initially and without waiver of release of similar or future records, please refer to KRS 61.878(1)(h). ? The investigation records requested are county attorney records pertaining to criminal investigations or potential criminal litigation. As such, these records are statutorily "exempt from the provisions of KRS 61.870 to 61.884" and remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.
Appellant filed an appeal of the County Attorney's denial on October 5, 2018. On October 12, 2018, the County Attorney responded to the appeal and, in addition to those statements previously made regarding the investigative record being exempt pursuant to KRS 61.878(1)(h), further stated that "KRS 61.878(1)(h) is dispositive of the issue." He also stated that the record "further pertains to an investigation for potential criminal litigation involving alleged conduct of a former deputy jailer during his employ with the Franklin County Jail[,]" and that a decision was made to take no action as a result of the investigation.
A decision on the appeal was not issued by this office after receipt of that response, as it was determined that the appeal was not properly perfected because Appellant had not provided a copy of the written request with the appeal. Appellant renewed her appeal almost a year later, on July 3, 2019, by providing copies of the requests to the County Attorney and the Jailer, along with their responses. The County Attorney responded to the perfected appeal on July 10, 2019, by providing a copy of his earlier letter of October 12, 2018.
In her letter of appeal, Appellant argues that the preliminary exceptions claim by the County Attorney did not apply as a "decision to take no action is final action in a disciplinary context." She also stated that the Franklin County Fiscal Court or the Jailer "should have been furnished with a copy ? " and argued that the Franklin County Fiscal Court and/or the Jailer should have provided her with the report since KRS 61.878(1)(h) does not apply to those agencies.
Prosecutors' Exemption, KRS 61.878(1)(h) . In relevant part, KRS 61.878(1)(h) provides that "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." In amending KRS 61.878(1)(h) in 1992, the General Assembly "clearly intended to afford permanent protection to the records of the [county and] Commonwealth's attorney which relate to criminal investigations or criminal litigation." 93-ORD-137, p. 2. "In other words, these records are forever exempt from public inspection under the Open Records Law." Id .; see also 96-ORD-77, p. 2 ("No matter what the stage or status of the proceedings, the [county and] and Commonwealth's attorney may invoke the exception set forth in KRS 61.878(1)(h) relative to such activities and endeavors and withhold those materials from public inspection" ); 11-ORD-005; 14-ORD-069.
The Kentucky Supreme Court has reaffirmed this position. Contrasting the criminal litigation files of county and Commonwealth's attorneys with criminal files in the custody of law enforcement agencies, in
City of Ft. Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 853 (Ky. 2013), the Court emphasized that "the General Assembly has indeed made clear . . . that a prosecutor's litigation files are excluded in toto from the Act . . . by singling them out" in KRS 61.878(1)(h). The Court "reiterate[d] that county attorney and Commonwealth's attorneys' files are treated differently after the 1992 amendment" to KRS 61.878(1)(h). Id. at 857. Four months later the Supreme Court revisited KRS 61.878(1)(h), recognizing that, "The General Assembly enacted this portion of the statute in 1992, and by thus according blanket protection to the investigatory and prosecutorial files of county and Commonwealth's attorneys, relieved those agencies of the need to justify nondisclosure by a showing, otherwise required, that disclosure would harm the agency ? ."
Lawson v. Office of the Attorney General, 415 S.W.3d 59, 66 (Ky. 2013). The Court held, "the statutory mandate that prosecutorial files be and remain totally exempt accords the prosecutor unlimited discretion to deny disclosure ? ." Id. at 69. Nevertheless, the Court observed, KRS 61.878(1)(h) "does not preclude [the county or Commonwealth's attorney] from allowing [disclosure] , assuming, of course, that no other exemption applies."
The investigative report in dispute was addressed to the County Attorney and, as the County Attorney stated, "pertains to an investigation for potential criminal litigation involving alleged conduct of a former deputy jailer during his employ with the Franklin County Jail." While the County Attorney concedes that a decision was made to take no action on the basis of the investigative record, that record remains exempt from disclosure in perpetuity pursuant to KRS 61.878(1)(h). Accordingly, the County Attorney did not violate the Open Records Act in ultimately denying the request on the basis of KRS 61.878(1)(h).
We agree with the County Attorney that KRS 61.878(1)(h) is dispositive of the denial of Appellant's request, and so will not address the argument that the requested record is also exempt pursuant to KRS 61.878(1)(i) and (j) or as "attorney-client work product. "
Lack of a Detailed Explanation . The County Attorney's denial of August 10, 2018, merely stated that "per KRS 61.878(1)(h), investigation records in the possession of the County Attorney are exempt. " The County Attorney did not explain that the records at issue pertained to "criminal investigations or criminal litigation" as required by KRS 61.878(1)(h) for a record to be withheld and thus failed to explain how the cited exception applied to the record withheld, as required by KRS 61.880(1). 3 While the County Attorney corrected that error on appeal, we remind the agency of its duty to explain how an exception applies as a basis for withholding records.
County Fiscal Court/Jailer . We next address the last point made by Appellant - that the County Fiscal Court or the Jailer should have provided her with a copy of the report. KRS 61.880(2)(a), states in relevant part: "If a complaining party wishes the Attorney General to review a public agency's denial of a request to inspect a public record, the complaining party shall forward to the Attorney General a copy of the written request and a copy of the written response denying inspection." There was no records request to, or denial by, the Fiscal Court for this office to review. Thus, we are without jurisdiction to issue a decision with respect to whether the Fiscal Court should have provided records to Appellant.
As to whether the Jailer should, or could, have provided Appellant with a copy of the report, the record reflects that the Jailer was not in possession of the report and could not have provided the record to Appellant. The County Attorney's response to the August 30, 2018, request, made on behalf of the Jailer, stated that the "report is in the custody and possession of the office of the County Attorney. " From this response, we understand that the requested record was in the exclusive possession of the County Attorney and that the Jailer did not have a copy of the requested record to provide to Appellant. While not a model of clarity, we believe that the County Attorney's response on behalf of the Jailer notified Appellant that the Jailer did not have a copy of the requested record. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98; 99-ORD-150. The Jailer discharged its duty under the Open Records Act, via the County Attorney's response, by affirmatively advising that it did not have a copy of the requested record. 99-ORD-150. Accordingly, we find no violation of the Open Records Act by the Jailer in not providing the requested record. Violation of KRS 61.880(1) . From the record on appeal, it appears that the Jailer violated KRS 61.880(1) in failing to substantively respond, within three days, to Appellant's August 30, 2018, request. Although the Jailer responded within three days, as required by KRS 61.880(1), the response did not address the request for the investigative record. The response of the County Attorney on September 13, 2018, on behalf of the Jailer, did provide a substantive answer, but was not sent within three business days after receipt of the request by the Jailer. 4 This office has repeatedly held that late responses constitute violations of the Open Records Act. See 17-0RD-029 (concluding that failure to respond within the three-day time period is a violation of KRS 61.880(1)); 16-0RD-230 (reminding "that the procedural requirements of the Open Records Act 'are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request.'" (quoting 93-ORD-134, p. 9). As Appellant made her request to the Jailer, that agency was responsible for issuing a response pursuant to KRS 61.880(1) as to whether it would comply with her request.
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.
Footnotes
Footnotes
1 Kelly Rouse is a former chief deputy jailer for the Franklin County Jail.
2 A redacted copy of a report titled "Investigation[,]" dated June 28, 2018, addressed only to the County Attorney, from the law firm of Sturgill, Turner, Barker & Moloney, PLLC, was provided as part of the appeal in this matter. We presume that this is the redacted report provided to Appellant by the County Attorney on September 13, 2018.
3 The relevant portion of KRS 61.880(1) states:
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.
4 KRS 61.880(1) provides, in relevant part:
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.