24-ORD-151
June 25, 2024
In re: Leslie Lawson/Kentucky State Police
Summary: The Kentucky State Police (“KSP”) violated the Open
Records Act (“the Act”) when it failed to note certain documents were
withheld in its response to a request for records. However, KSP did not
violate the Act when it redacted personal identifying information under
KRS 61.878(1)(a) and confidential information under KRS 17.150(4), or
when it did not provide records that it does not possess or cannot locate
based on the description provided in the request.
Open Records Decision
On March 15, 2024, Leslie Lawson (“Appellant”) made a four-part request to
KSP. First, he requested a copy of KSP’s General Order OM-C-3 relating to
confidential informants. Second, he requested the investigative file concerning his
1997 indictment. Third, he requested the investigative file for a case identified only
by the name of a detective and a 1998 circuit court case number. Finally, he requested
“whole investigation files” for unidentified cases in which a named individual acted
as a confidential informant in 1997 and 1998.
In response, KSP provided a copy of General Order OM-C-3 and a copy of four
investigative files concerning the Appellant’s 1997 indictment. KSP noted that it had
redacted information such as Social Security numbers, addresses, and telephone
numbers from the investigative file under KRS 61.878(1)(a) due to the risk of identity
theft. Regarding the 1998 investigative file, KSP stated it had “conducted a diligent
search” but could not locate a file using only the case number the Appellant had
provided. KSP denied the request for files relating to the named informant, citing
KRS 197.025(2).1 This appeal followed.
1 KRS 197.025(2) provides that the Department of Corrections need not comply with a request from
an inmate “unless the request is for a record which contains a specific reference to that individual.”KRS 61.878(1)(a) exempts from disclosure “[p]ublic records containing
information of a personal nature where the public disclosure thereof would constitute
a clearly unwarranted invasion of personal privacy.” On appeal, KSP states that the
information it redacted from the 1997 case files under KRS 61.878(1)(a) includes
Social Security numbers, home addresses, personal telephone numbers, dates of
birth, and driver’s license numbers. These types of personal information pertaining
to private individuals may be categorically redacted from law enforcement records
when they provide no insight into how the public agency performed its public duties.
See Ky. New Era, Inc. v. City of Hopkinsville, 415 S.W.3d 76 (2013). Accordingly, KSP
did not violate the Act when it redacted these categories of information.
However, KSP failed to note in its initial response that it also withheld five
pages obtained from the National Crime Information Center (“NCIC”) database.
Under KRS 17.150(4), “[c]entralized criminal history records are not subject to public
inspection.” As a statute prohibiting or restricting the disclosure of records,
KRS 17.150(4) is incorporated into the Act by KRS 61.878(1)(l). Thus, KSP did not
violate the Act when it withheld records obtained from NCIC. Nevertheless, under
KRS 61.880(1), “[a]n 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.” Thus, KSP violated the Act when it failed to note and explain this partial
denial of the Appellant’s request.
Regarding the 1998 case file, KSP reiterates it was unable to locate a file using
only a criminal case number because it does not catalog records in that manner. A
public agency is required to provide copies of public records by mail only after the
requester “precisely describes the public records which are readily available within
the public agency.” KRS 61.872(3)(b). When the requester does not provide sufficient
information to enable the agency to locate the requested records through a reasonable
effort, the description fails to comply with KRS 61.872(3)(b). See, e.g., 16-ORD-242;
14-ORD-173; 13-ORD-077; 02-ORD-196. Therefore, KSP did not violate the Act when
it advised the Appellant it could not locate the requested file using the information
provided.2
As for the Appellant’s request for investigative files relating to a named
confidential informant, KSP notes on appeal that it erroneously cited in its response
KRS 197.025(2), a statute that applies to the Department of Corrections. However,
KSP states it could not locate any responsive records based on the information
provided. Once a public agency states affirmatively that it does not possess responsive
records, the burden shifts to the requester to present a prima facie case that the
requested records exist. Bowling v. Lexington–Fayette Urb. Cnty. Gov’t, 172 S.W.3d
2
After receiving this appeal, KSP conducted an additional search for Post 11 files pertaining to the
Appellant and investigated by the named detective, but found no other records.333, 341 (Ky. 2005). Here, the Appellant claims KSP should be able to locate records
by using an “informant profile card,” which KSP is required to create under General
Order OM-C-07. However, KSP states it did not locate any information for the named
informant and presumes the card would have been destroyed pursuant to KSP’s
records retention schedule.3 Thus, to the extent the Appellant may have established
a prima facie case that responsive records should have existed at some point, KSP
has rebutted the presumption by explaining why no records could be found.
Accordingly, KSP did not violate the Act when it could not provide records relating to
the named confidential informant.
A party aggrieved by this decision may appeal it by initiating an action in the
appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882 within 30 days
from the date of this decision. 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. The Attorney General will accept notice of
the complaint emailed to OAGAppeals@ky.gov.
Russell Coleman
Attorney General
/s/ James M. Herrick
James M. Herrick
Assistant Attorney General
#263
Distribution:
Leslie Lawson, #122950
Samantha A. Bevins, Esq.
Ms. Stephanie Dawson
Ms. Abbey Hub
Lt. Mitchel S. Hazelett
3
Under the applicable records retention schedule, informant cards need only be retained “two (2)
years after information is no longer active.” See Kentucky State Police Records Retention Schedule,
“Informant
Card,”
Series
00113,
available
at
https://kdla.ky.gov/records/RetentionSchedules/Documents/State%20Record…
olice.PDF (last accessed June 25, 2024). As the Appellant seeks information that is 26 years old and
he admits the informant is now deceased, it is reasonable to conclude the informant card has been
destroyed.