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 Louisville Metro Police Department ("LMPD") violated the Open Records Act ("Act") in its disposition of an open records request from a reporter from the Courier-Journal ("Courier-Journal") newspaper. For the reasons stated below, we find that LMPD violated the Act by failing to search for responsive records. LMPD initially failed to cite the statutory basis for withholding responsive investigation records and a Memorandum of Understanding ("MOU") with the Federal Bureau of Investigation ("FBI"), but corrected the error on appeal relating to the investigation records. LMPD violated the Act by initially denying the request on an erroneous presumption of non-possession of the responsive records. LMPD failed to meet its burden of proof in withholding the responsive records.
On May 28, 2019, Courier-Journal reporter Matthew Glowicki emailed an open records request to LMPD seeking records related to the Explorer Program and "the investigative case file pertaining to the sexual abuse allegations against former [LMPD] officer Brandon M. Wood." 1On May 29, 2019, LMPD denied the request, claiming it no longer had possession of the responsive records. LMPD explained, "[t]his office has been advised that the [Explorer Program] case was investigated by the [Federal Bureau of Investigation ("FBI") Public Corruption Taskforce ("task force")] and they are the custodians of records." However, LMPD did not search its own locations and staff for responsive records.
On July 8, 2019, Mr. Glowicki contacted LMPD to verify that public agency was asserting non-possession of the responsive records. LMPD responded, "Correct." On July 25, 2019, Mr. Golicki replied, "does LMPD not have any responsive records? Be they originals or copies, digital or hard-copy? I ask partially because both cases of course started with [LMPD's Public Integrity Unit ("PIU")] investigations and LMPD members are part of that task force." LMPD replied, "your request for records was forwarded to PIU which advised that any records must come from the lead agency which is the FBI Task Force. If PIU obtained or generated any records they would have been turned over to the FBI Task Force for their investigation."
On August 13, 2019, Attorney Jon Fleischaker, Kaplan Johnson Abate and Bird, LLP, appealed on behalf of the Courier-Journal. The Courier-Journal argued LMPD violated KRS 61.880(1) by failing to cite a statutory basis for withholding responsive records. Regarding LMPD's purported non-possession of responsive records, the Courier-Journal argued, "LMPD cannot avoid its obligation under the Act by saying the FBI is the 'official' custodian of LMPD's own records" and "is not relieved of its duty under the Act simply because the record is also in the custody of another public agency." The Courier-Journal acknowledged the FBI adopted LMPD's Explorer Program investigation, but argued it was no longer relevant because Officers Wood and Betts were, "charged federally in November 2018. . .[b]oth have since pled guilty and received lengthy sentences for their conduct[.]
On September 3, 2019, LMPD responded to the appeal, arguing that it no longer possessed responsive records because in March 2017, "the [Explorer Program] investigation. . .was taken by the FBI[,]" and "all copies of the investigative materials, physical and digital, and any of the investigative materials were physically removed from the premises, digital devices, and servers of LMPD[.]" LMPD stated the department "has not been involved in any part of the investigation after March 2017 and no records pertaining to it have been provided to LMPD, created by LMPD, or stored on any LMPD computers or other electronic equipment." However, LMPD stated, "it failed to state in clear and express terms that it did not possess any records responsive to Mr. Glowicki's request nor did it conduct a search upon receiving his request." LMPD stated that upon receiving the Courier-Journal's request, "[i]t was then discovered that one of the PIU investigators assigned to the task force had inadvertently saved one page of the investigative file on an LMPD server." LMPD stated that the responsive record, "was immediately removed from LMPD's possession[.]" LMPD argued that the located responsive record was exempt because the four PIU investigators were "sworn to secrecy regarding the nature of the ongoing investigation pursuant to Fed. R. Crim. P. 6(e)[.]" LMPD stated that an Assistant United States Attorney working with the task force advised that the PIU investigators were not permitted to discuss or disclose any information pertaining to the Explorer program investigation. LMPD stated that it verified that the Explorer Program investigation was still ongoing.
On September 4, 2019, this office requested records for in camera review, pursuant to KRS 61.880(2)(c) 2and 40 KAR 1:030, Section 3, 3verifying and substantiating LMPD's claim that Fed. R. Crim. P. 6(e) is grounds for withholding responsive records. Specifically, this office requested "a copy of any written memorialization of the confidentiality or nondisclosure agreements between LMPD and either the FBI or [United States] Attorney's Office." On September 18, 2019, LMPD stated that upon receipt of the request from this office it located an additional "approximately 9,000 documents relating to the investigation." LMPD explained, "Louisville Metro Government's IT department created hidden folders for the [PIU] investigators that only certain users could access." However, LMPD stated it "arranged for Louisville Metro Government's IT department to remove them from the system and provide them to the FBI."
Regarding our request for verification, LMPD provided copies of a February 22, 2018 MOU between LMPD and the FBI, a September 17, 2019 Affidavit of LMPD Chief Steve Conrad ("Affidavit"), and a January 24, 2018 letter from Assistant United States Attorney Jo E. Lawless. This office is not at liberty to disclose the contents of material submitted for in camera review, but can generally describe that the MOU is an agreement creating the task force and defining its mission and terms of operation. Each page of the MOU is stamped with an advisory stating that neither the MOU nor its contents may be released without authorization of the FBI, but the MOU does not identify any statute, law, or regulation that prohibits such release.
The MOU and Affidavit verify that the FBI asserted exclusivity over the LMPD PIU investigation of Officers Betts and Woods. The MOU confirms that LMPD agreed to maintain all task force investigation material at the FBI Louisville Field Office. However, the MOU allows LMPD to access task force information, subject to approval of the task force supervisor and applicable law and FBI procedures. The letter from Mr. Lawless verifies that the Explorer Program investigation is the subject of an ongoing federal grand jury investigation, and advises that "Fed. R. Crim. P. 6(e)(2)(B)(vii), 6(e)(3)(A)(ii) and 6(e)(3)(B)" prohibit the investigation team from disclosing task force materials. However, the letter advises that the cited federal rules obligate the four investigators from the LMPD PIU. The letter does not state that the federal rules apply to LMPD.
LMPD violated KRS 61.880(1) by Failing to Search for Responsive Records . LMPD acknowledges that it did not conduct a search for responsive records, initially speculating that the FBI was in possession of all responsive records. On appeal, LMPD discovered that it possessed a record inadvertently saved by a PIU investigator, and it possessed approximately 9,000 additional responsive records. As such, LMPD violated KRS 61.880(1) by failing to search its own records prior to responding to the Courier-Journal's open records request.
LMPD responded to the request by asserting that no responsive records exist in its possession. A public agency cannot afford a requester access to a record that it does not have or that does not exist. 99-ORD-98. However, a public agency cannot satisfy its burden of proof under KRS 61.880(2)(c) or fulfill its duty under KRS 61.880(1) by speculating as to the nonexistence of responsive records. 19-ORD-077; 19-ORD-154. A public agency, in responding to an open records request, is required to "make a good faith effort to conduct a search using methods which can reasonably be expected to produce the records requested." 95-ORD-96, p. 4 (quoting
Cerveny v. Central Intelligence Agency , 445 F.Supp. 772, 775 (D. Col. 1978)). Further, the agency "is required to make a reasonable search of persons who are likely to have responsive records." 14 - ORD-181; 17-ORD-273. LMPD failed to search its records, and evidently failed to expand its search to locations and persons likely to possess responsive records. Accordingly, LMPD violated KRS 61.880(1).
LMPD Failed to Cite a Statutory Basis for Withholding Responsive Records but Partially Corrected the Error on Appeal . LMPD violated KRS 61.880(1) by failing to cite provisions of Fed. R. Crim. P. 6(e), incorporated into the Act by operation of KRS 61.878(1)(k), 4as the statutory grounds for withholding the responsive investigation records. However, LMPD corrected this error on appeal. LMPD also failed to cite a statutory basis for withholding a copy of the MOU, and failed to correct that error on appeal.
Pursuant to KRS 61.880(1) a public 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." LMPD's initial response failed to cite the federal rules or explain how any law applied to the records withheld, but LMPD provided the required information on appeal and in response to our request for verification and substantiation of the denial. LMPD withheld the MOU applicable to the investigation file, but failed to cite a specific exception authorizing the withholding and explain how the exception applied. Accordingly, LMPD violated KRS 61.880(1), but only corrected the error in relation to the requested investigation case file.
LMPD Violated the Act by Denying the Request Based on the Initial Presumption of Non-possession of the Responsive Records . LMPD violated the Act when it presumed non-possession of the responsive records and directed the Courier-Journal to submit its request to the FBI. The record shows that the FBI took physical possession of some records responsive to the Courier-Journal's request. However, the MOU shows that LMPD continued to have access to all task force records, even though the task force supervisor and applicable laws and FBI regulations govern that access. As such, there is no merit to LMPD's argument that it no longer possesses the responsive records. Accordingly, LMPD violated the Act when it failed to review the MOU and investigation file, and produce for inspection any nonexempt public records.
The term "public record" is defined as "documentation regardless of physical form or characteristics, which [is] prepared, owned, used, in the possession of or retained by a public agency." KRS 61.872(1) states, "[a]ll public records shall be open for inspection by any person, except as otherwise provided . . . ." This office has found that these provisions do not require that the public agency both prepare and possess the requested record. 98-ORD-100, p. 4. "Nor do we find any language which relieves the agency of these clearly established duties if the records are in the custody of another agency from which they could 'more appropriately' be obtained." Id. (citing OAG 91-21, p. 4). Accordingly, the FBI's physical possession of the responsive records did not relieve LMPD of its duty to review the responsive records and respond in accordance with the requirements of the Act.
LMPD failed to review the MOU and accurately ascertain its level of access to the responsive records prior to responding to the Courier-Journal's request. "[I]t is incumbent on [a public agency] to retrieve all responsive records and review those records before issuing a denial." 12-ORD-013, p. 2 (emphasis added). The MOU governs the Explorer Program investigation and defines LMPD's role. As such, it is part of the investigation file and is itself a responsive record. LMPD had a duty to review the MOU, as with all other responsive records, before responding to the request. Our in camera review of the MOU revealed that LMPD retained conditional access to the investigation file. As such, LMPD had sufficient access to fulfill its duty under the Act to review the investigation file and produce for inspection any nonexempt responsive records. KRS 61.880(1) requires a public agency to premise its denial "on the specific exception authorizing the withholding of the record," rather than an exception that has no application. Id. Accordingly, LMPD violated the Act when it initially denied the request due to the incorrect presumption of non-possession.
LMPD Failed to Meet its Burden of Proof in Withholding the Responsive Investigation File and MOU . LMPD asserted Fed. R. Crim. P. 6(e)(2)(B)(vii), 6(e)(3)(A)(ii) and 6(e)(3)(B) as grounds for withholding the requested investigation records. LMPD argued that a letter from US Attorney Lawless advised that the laws required withholding the responsive records. However, our in camera review of Mr. Lawless' letter showed that LMPD misinterpreted his advisory and it only applied to the four PIU investigators sworn into the FBI investigation. Further, this office has found that the federal criminal rules only apply to persons specifically identified in the laws. As such, LMPD failed to meet its burden of proof regarding these exemptions.
Fed. R. Crim. P. 6(e)(2)(B) states as follows:
Secrecy . Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury: a grand juror; an interpreter; a court reporter; an operator of a recording device; a typist who transcribes records testimony; an attorney for the government, or a person to whom disclosure is made under Rule 6(e)(3)(A) (ii) or (iii) .
(Emphasis added). Paragraph (3)(A)(ii) and (iii) referred to above state as follows:
Exceptions . Disclosure of a grand-jury related matter -- other than the grand jury's deliberations or any grand juror's vote-may be made to: (ii) any government personnel -- including those of a state, state subdivision , Indian Tribe, or foreign government -- that an attorney for the government considers necessary to assist in performing that attorney's duty to enforce federal criminal law; or (iii) a person authorized by 18 U.S.C. § 3322.
(Emphasis added). Paragraph (3)(B) states, in relevant part:
A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that information only to assist an attorney for the government in performing that attorney's duty to enforce federal criminal law.
Prior decisions of this office support Mr. Lawless' interpretation of the limitations of the federal criminal rules to the four PIU investigators. The Attorney General has found that the obligation of secrecy under Fed. R. Crim. P. 6(e), "cannot, however, be imposed on any person except those specified in the Rule, and does not extend to witnesses. Only those persons identified in the Rules are barred from disclosing matters occurring before the grand jury." 93-ORD-91. Accordingly, the prohibitions of Rules 6(e)(2)(B)(vii), 6(e)(3)(A)(ii) and 6(e)(3)(B) do not apply to every officer of the LMPD, but rather to the PIU investigators sworn into the FBI investigation.
Further, "the prohibition against disclosure of matters occurring before the grand jury is not a prohibition against the disclosure of all information that is presented to the grand jury. . . 'physical evidence, such as a document, does not become secret merely because it has been presented to a grand jury, if it was created for purposes other than the grand jury investigation and its disclosure does not reveal matters occurring before the grand jury.'" 01-ORD-67, p. 11 (citing In the Matter of Grand Jury Investigation (90-3-2) , 748 F.Supp. 1188, 1207-1208). The record shows that the responsive investigation file was created by the PIU investigators as part of their LMPD investigation, and prior to their March 2017 adoption into the FBI task force. Accordingly, the responsive records are not exempt because they were, "created for purposes other than the grand jury investigation and [their] disclosure does not reveal matters occurring before the grand jury." See Id. ; see also 05-ORD-106 (finding it is the nature and purpose of the record, not the place or person that has possession of the document, which determines its status as a public record); compare 02-ORD-220 (finding KRS 61.878(1)(k) and Fed. R. Crim. P. 6(e) exempted subpoenas created by a federal grand jury and disclosed to Revenue Cabinet personnel under Rule 6(e)(3)(A)(ii)).
LMPD failed to meet its burden of proof under KRS 61.880(2)(c) and support withholding the MOU. LMPD correctly stated that the FBI marked the MOU with an advisory prohibiting disclosure of the agreement. However, LMPD did not identify any statute, law, or regulation exempting the agreement from disclosure. Further, the provisions of the MOU fail to identify any such authority. The Act "does not allow public records to be exempted from disclosure by contract. They must be exempt by a statutorily recognized exemption." 03-ORD-065 (citing 95-ORD-14). LMPD failed to identify a specific exception authorizing the withholding of the MOU, and thus violated the Act. See KRS 61.880(1).
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 proceedings.
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