NOT TO BE PUBLISHED
March 22, 1995
In re: Matt Stahl/Ohio County Sheriff
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the Ohio County Sheriff's denial of Matt Stahl's request, on behalf of The Ledger-Independent, Maysville, Kentucky, for all information on an incident which occurred in Ohio County in which two hunters from Fleming County were robbed at a camp on Central Grove Road. Specifically, Mr. Stahl requested copies of all reports made by the sheriff's department, including the names of the victims. E. Glenn Miller, Ohio County Attorney, on behalf of the Ohio County Sheriff denied Mr. Stahl's request. He advised Mr. Stahl that the incident was currently under investigation and that, at the request of the victims, the sheriff was going to keep their identities confidential until their assailants were in custody.
In addition to the above, Mr. Miller enclosed with his response a news release by the sheriff's office which set forth factual details of the robbery but which did not disclose the identity of the victims.
The Open Records Act contains specific guidelines for an agency's response to an open records request. KRS 61.880(1) provides in pertinent 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. 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 action.
The response from the sheriff was technically deficient and violated the Open Records Act to the extent that it failed to set forth the specific statutory exception authorizing the withholding of the records and a brief explanation of how the exception applies to the record withheld.
Addressing the substantive issue raised in this appeal, it is the decision of this office that the sheriff properly denied Mr. Stahl's request for all reports made by his department concerning the incident which still is an ongoing investigation.
Although no exemption is specifically cited by the sheriff, the facts set forth in his response support the conclusion that the reports of the incident are exempted from disclosure under KRS 61.878(1)(h) and KRS 61.878(1)(l) in tandem with KRS 17.150(2).
KRS 61.878(1)(h), in relevant part, exempts from public inspection:
Records of law enforcement agencies or agencies involved in administrative adjudication 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. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action . . . .
Law enforcement officials necessarily must have the discretion to determine if the release of an incident report or the identity of victims or witnesses would be premature or pose a danger to individuals or otherwise be detrimental to prospective enforcement action. In his response, Mr. Miller articulated that the perpetrators of the crime remained at large and the victims expressed to the sheriff great fear for their personal safety and requested that their identities be kept confidential. Under these circumstances, the response sets forth an articulated basis for withholding the identities and supports a proper exercise of discretion by the sheriff in doing so. See OAG 89-20 (copy enclosed).
This exception is clearly intended to authorize the nondisclosure of records generated by sheriffs in pursuing and investigating uncharged crimes. See 93-ORD-106 (copy enclosed).
KRS 61.878(1)(h) allows the sheriff's office to withhold its investigative file on the robbery incident until the prosecution of the case is concluded or a decision is made not to prosecute.
KRS 61.878(1)(l) exempts from public inspection:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly.
KRS 17.150(2) provides for the nondisclosure of intelligence and investigative reports maintained by criminal justice agencies (which would include the sheriff's office) prior to the completion of the prosecution or the decision not to prosecute.
Thus, KRS 61.878(1)(l) and KRS 17.150(2) also permit the sheriff's office to withhold its investigative file while the case is ongoing. See 93-ORD-98 (copy enclosed).
Finally, it is the decision of this office that the sheriff's office properly withheld the names of the victims of the robbery as that request was for information rather than a request to inspect records. This office has consistently recognized that a request for information, as opposed to a request for specific documents, is not within the reach of the Open Records Law. The provisions of the Open Records Act address only the inspection of records. See 93-ORD-7; OAG 90-100 (copies enclosed).
Mr. Stahl may challenge this decision 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 should be notified of any action in circuit court, but should not be named as a party in that action or in any subsequent proceedings.
JAMES M. RINGO
ASSISTANT ATTORNEY GENERAL
Hon. E. Glenn Miller
Ohio County Attorney
P.O. Box 83
Hartford, KY 42347
Sheriff Elvis Doolin
Ohio County Courthouse
Hartford, KY 42347
Mr. Matt Stahl, News Editor
P.O. Box 518
Maysville, KY 41056