23-ORD-212
August 11, 2023
In re: Michael Bryant/Richmond Police Department
Summary: The Richmond Police Department (the “Department”)
violated the Open Records Act (“the Act”) when it denied a request for a
record under KRS 61.878(1)(h) and KRS 17.150 without explaining how
those exceptions apply to the records it withheld.
Open Records Decision
Michael Bryant (“Appellant”) submitted a request to the Department “for any
and all police reports initiated by either the City of Richmond or by [its] City Manager
. . . for the month of September 2020.” In a timely response, the Department informed
the Appellant that it had located one record responsive to his request, but it denied
his request because the “case remains open, but inactive” and “it is exempted from
inspection by KRS 61.878(1)(h).” The Department also cited 06-ORD-092 in support
of its denial. This appeal followed.
Upon receiving a request to inspect public records, a public agency must
determine within five business days whether to grant the request or deny it.
KRS 61.880(1). If the agency chooses to deny the request, it “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.” Id. Although
KRS 61.880(1) requires the explanation in support of denial to be “brief,” the response
cannot be “limited and perfunctory.” Edmondson v. Alig, 926 S.W.2d 856, 858 (Ky.
App. 1996). In Edmondson, the agency’s response to a request stated only that “the
information you seek is exempt under KRS 61.878(1)(a)(k)(l) [sic].” Id. The agencyfailed to explain how any of the three exemptions applied to the records withheld, and
for that reason, the court held, it violated KRS 61.880(1). Id.
KRS 61.878(1)(h) exempts from inspection “[r]ecords of law enforcement
agencies . . . 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.” Under KRS 61.880(2)(c), a public agency bears the
burden of proof in sustaining its action.
In its initial response, the Department stated it located one responsive record,
but denied the request under KRS 61.878(1)(h). The Department did not explain how
that exception applied to the record it withheld. Rather, the Department stated only
that it had referred the investigation to the Attorney General’s Office on September
14, 2020, but had not yet received correspondence regarding the status of the
investigation.1 It therefore considers the case to open, but inactive. Although the
Department may have described the status of the case, it did not explain how
KRS 61.878(1)(h) applied to the record it withheld. Instead, it merely cited the
Office’s decision in 06-ORD-092. Accordingly, the Department’s “limited and
perfunctory response” violated the Act. Edmondson, 926 S.W.2d at 858.
In 06-ORD-092, the Office held that a law enforcement agency had properly
relied upon KRS 61.878(1)(h) to deny a request because the investigation to which
the records are related is open and active. However, KRS 61.878(1)(h) requires three
elements to sustain the exemption. First, the records must be “records of law
enforcement agencies or agencies involved in administrative adjudication.” Second,
the agency must show the records were “compiled in the process of detecting and
investigating statutory or regulatory violations.” Finally, the agency must show
release of the records “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.”
However, since the Office’s 2006 decision, the Supreme Court of Kentucky has
interpreted KRS 61.878(1)(h) to require more of law enforcement agencies than a
mere statement that an investigation is open. In City of Ft. Thomas v. Cincinnati
Enquirer, 406 S.W.3d 842 (Ky. 2013), the Court held that investigative files of law
enforcement agencies are not categorically exempt from disclosure under
1
The Attorney General’s Office has declined to prosecute and has no open file.KRS 61.878(1)(h). Rather, when a record pertains to a prospective law enforcement
action, KRS 61.878(1)(h) “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.“ Id. at 851. Thus, in more recent decisions, the Office has required law
enforcement agencies relying on KRS 61.878(1)(h) to show that each of the three
elements of the exemption applies. See, e.g., 23-ORD-128 n.1; 23-ORD-106; 22-ORD-
249.
Here, it is undisputed that the Department is a law enforcement agency under
KRS 61.878(1)(h). However, when an agency relies on KRS 61.878(1)(h), it must also
show that the record was “compiled in the process of detecting and investing statutory
or regulatory violations” and the release of the record will cause harm to the
investigation. Here, the Department has not stated whether the record it withheld
was “compiled in the process of detecting and investigating statutory or regulatory
violations” or explained how the record would harm the investigation if released.
Accordingly, the Department has not carried its burden that KRS 61.878(1)(h) applies
to the record withheld.
On appeal, the Department alternatively claims the record is also exempt
under KRS 17.150(2). Under that exemption, “[i]ntelligence 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. However, portions
of the records may be withheld from inspection if the inspection would disclose . . .
[i]nformation contained in the records to be used in a prospective law enforcement
action.” KRS 17.150(2)(d). When an agency invokes KRS 17.150(2), “the burden shall
be upon the custodian to justify the refusal of inspection with specificity.”
KRS 17.150(3). Here, although the Department claims KRS 17.150(2) permits it to
deny the Appellant’s request, it does not adequately explain how KRS 17.150(2)
applies to the record it withheld. More specifically, because the Department has not
described the record it withheld, it has not demonstrated how the record qualifies as
an “[i]ntelligence and investigative report” within the meaning of KRS 17.150(2). As
a result, the Department violated the Act when it failed to show that KRS 17.150
applies to the record it withheld.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court under KRS 61.880(5) and KRS 61.882 within 30 days from
the date of this decision. Under 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 inany subsequent proceedings. The Attorney General will accept notice of the complaint
emailed to OAGAppeals@ky.gov.
Daniel Cameron
Attorney General
s/ Matthew Ray
Matthew Ray
Assistant Attorney General
#314
Distributed to:
Michael Bryant
Amanda Stasi
Rodney Richardson
Tyler Frazier