20-ORD-105
July 28, 2020
In re: Summary:
The Jefferson County Coroner’s Office (“Coroner’s
Office”) violated the Open Records Act (“the Act”) by failing to cite
the applicable statutory exception and explain how it applied in
denying a request for a specified autopsy report. On appeal,
however, the Coroner’s Office properly invoked KRS 17.150(2) and
justified its reliance on that provision with adequate specificity.
Open Records Decision
On May 12, 2020, The Courier-Journal (“Appellant”) requested from the
Coroner’s Office an electronic copy of the “autopsy report for decedent Breonna
Taylor . . . who died at 3003 Springfield Drive #4 in Louisville on March 13.”
Deputy Coroner Kimberly Smith responded the same day, but advised that “[t]his
case is still under investigation, per [her] phone call with LMPD two days ago.”
She further advised that she would call Appellant when she obtained a release.
Based upon the following, this Office finds the Coroner’s Office violated KRS
61.880(1) initially when it failed to cite the statutory exception it was relying upon
to deny the request and provide a brief explanation of how the exception applied.
On appeal, however, the Coroner’s Office invoked KRS 17.150(2) as the applicable
exemption and justified its reliance on that exception with adequate specificity.
Under KRS 61.880(1), a “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 Coroner’s Office initially failed to cite any applicableexception to justify withholding the document or provide a brief explanation of
how the exception applied. For this reason, it violated the Act.
On appeal, the Coroner’s Office cured its deficient response and justified its
denial on the basis of KRS 17.150(2). Responding on behalf of the Coroner’s Office,
Assistant Jefferson County Attorney Paul V. Guagliardo explained the coroner’s
role:
Coroners are in fact part of law enforcement. They are peace officers.
KRS 72.400; 72.415. Coroners are obligated by law to require post-
mortem examinations (KRS 72.405(4)) when there has been a violent
death. KRS 72. 025(1). The Coroner is directed by statute to retain all
evidence acquired in his/her investigation until it is needed by the
prosecutor. KRS 72. 020(2). In fact, by law, no one including police
officers at the scene of a death can touch or remove a body until
given permission by the coroner. KRS 72.020(1). Coroners are
required to investigate all violent deaths. KRS 72.410 (1). And, of
course, as peace officers, coroners are authorized, among other
things, to conduct investigations into the cause and circumstances of
a death and to seize evidence. KRS 72.415(1)(b) and (c).
The Coroner’s Office further explained that, as a rule, the medical examiner
performs the post-mortem examination and the coroner “must rely on
investigators as to whether premature disclosure might thwart the integrity of
their investigation.” The Coroner’s Office claims that if the Appellant had asked
the Louisville Metro Police Department (“LMPD”) for the autopsy report, LMPD
would have denied the request because “premature release of the findings at an
early stage of an investigation could color witnesses’ or suspects’ recollection of
events and allow them to tailor their recollection to fit someone else’s version of
the facts.” Thus, the Coroner’s Office argues that at this time the records are
exempt from inspection under both KRS 61.878(1)(h) and KRS 17.150(2).
“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.” KRS 17.150(2) (emphasis added).
KRS 17.150 is incorporated into the Act pursuant to KRS 61.878(1)(l), which
exempts “[p]ublic records or information the disclosure of which is prohibited or
restricted or otherwise made confidential by enactment of the General
Assembly[.]” Although the term “criminal justice agencies” is not explicitlydefined, KRS 17.150(1) includes coroners among a list of “every other . . . criminal
justice agency” in defining certain reporting obligations.
Because the Coroner’s Office is a “criminal justice agency” within the
meaning of KRS 17.150(2), this Office must determine whether the exception
applies to the requested autopsy report. The Attorney General has previously
analyzed the underlying purpose of KRS 17.150(2) and KRS 61.878(1)(h),
observing that “[i]nvestigative reports are nearly always withheld from public
inspection to protect sources of information and techniques of investigations and
also to prevent premature disclosure of the contents to the targets of investigation,
which could thwart law enforcement efforts.” OAG 83-123, p. 2 (citing Privacy:
Personal Data and the Law, National Association of Attorneys General (1976)). This
Office later determined that “investigative reports” is “broad enough to extend to
laboratory, forensic, and other reports generated in the course of an investigation.”
05-ORD-246, p. 2; see also 17-ORD-144. In 11-ORD-202, this Office specifically held
that an autopsy report generated by the Western Kentucky Regional Medical
Examiner was exempt from inspection until a prosecutorial decision had been
made. Therefore, the autopsy report for Ms. Breonna Taylor is “subject to public
inspection if prosecution is completed or a determination not to prosecute has been
made.” KRS 17.150(2) (emphasis added).
Appellant argues that the mere potential for future prosecution is
insufficient to withhold the autopsy report. However, that assertion is contrary to
the express terms of KRS 17.150(2)(d). In addition, Appellant’s reliance on City of
Ft. Thomas v. Cincinnati Enquirer, 406 S.W. 3d 842 (Ky. 2013), is inapposite. Relying
on Ft. Thomas, Appellant argues that the Coroner’s Office must articulate the harm
that could occur to the investigation. However, the Court in that case did not
address the application of KRS 17.150(2), because the subject of the investigation
in that case had already been prosecuted and convicted. See id. at 846.
Notwithstanding the agency’s claim that the convicted defendant could still seek
post-conviction relief, the Court found the agency failed to satisfy its burden under
KRS 61.878(1)(h). Id. at 852. Thus, the holding in Ft. Thomas is inapplicable to KRS
17.150, and this Office has recognized that a public agency is not required to
articulate a specific and concrete harm to a potential prosecution to justify
invocation of that provision. Rather, KRS 17.150 merely requires the agency to
provide a specific reason for withholding the records. See KRS 17.150(3); see also14-ORD-154, (holding that Ft. Thomas does not apply in the context of KRS 17.150
and that the agency had properly denied the request).
On appeal, the Coroner’s Office also relies upon letters sent by Assistant
Deputy Attorney General Amy Burke and Special Agent in Charge James R.
Brown, Jr. to Interim LMPD Chief Robert Schroeder. Assistant Deputy Attorney
General Burke and Special Agent Brown confirmed that the Kentucky Office of the
Attorney General and the Federal Bureau of Investigation, respectively, have
received a copy of the relevant investigative files from LMPD to assist in their
ongoing investigations of the circumstances that led to Ms. Taylor’s death. Both
letters confirm that disclosure of the requested autopsy report would have an
adverse impact on those ongoing investigations and the potential prosecutions
that may result from them. For these reasons, the Coroner’s Office has stated with
specificity that a prosecutorial decision has not been made and that KRS 17.150(2)
applies to temporarily withhold the requested autopsy report. Furthermore, the
Coroner’s Office acknowledges that once a prosecutorial decision has been made,
the autopsy report may be subject to inspection unless another statutory
exemption applies. See KRS 17.150(3) (“Exemptions 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, the Coroner’s Office did not violate the
Act in denying Appellant’s request for the autopsy report at this time.
Either party may appeal this decision 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.
Daniel Cameron
Attorney General
/s/ Michelle D. Harrison
Michelle D. Harrison
Assistant Attorney General
#130Distributed to:
Michael Abate
Darcy Costello
Kimberly Smith
Paul Guagliardo