November 4, 1996

In re: Thomas W. Miller/Clark County Sheriff's Office

Open Records Decision

This matter comes to the Attorney General on appeal from the Office of the Clark County Sheriff's denial of the open records request of Mr. Thomas W. Miller, Esq., for copies of certain records of the Sheriff's office. Specifically, Mr. Miller requested the following items from the Sheriff's investigative file in the case of Commonwealth v Herman Dayton, Clark District Court, Case No. 95-F-00145:

1. All file notes, including, but not limited to, those of Detective Shannon Stone;

2. All photographs; and

3. All audio tapes, including, but not limited to, the audio-tape statement of Jean Davis.

Mr. Gary O. Lawson, Clark County Sheriff, in denying Mr. Miller's request, stated:

I contacted our County Attorney regarding your request. Upon his recommendation, I am denying your open records request based upon KRS 61.878(1) sections (a), (h), (i), and (j). Enclosed is a letter from County Attorney Robert Rose's office.

In the letter from Mr. Kevin Costello of the Clark County Attorney's Office to Sheriff Lawson, Mr. Costello advises:

After reviewing the request and the provisions of the Kentucky Open Records Act, KRS 61.870 to 61.884, it is my opinion that the request should be denied. Certain public records are exempt from disclosure pursuant to KRS 61.878. Section (1)(h) exempts records of law enforcement agencies. This exemption ends when prosecution is complete or a decision is made not to prosecute. However, records or information compiled and maintained by county attorneys or commonwealth attorneys pertaining to criminal investigations or criminal litigation remain exempt. Section (1)(i) of the statute exempts preliminary drafts, notes, correspondence with private individuals, other than correspondence which is intended to give notice of final agency action of a public agency; and section (1)(j) exempts preliminary memoranda in which opinions are expressed or policies formulated or recommended.

The file notes are obviously notes exempted by KRS 61.878(1)(i) and may contain preliminary recommendations or opinions of the officers which are exempt by KRS 61.878(1)(j). Any materials from the investigation which are contained in the commonwealth attorney's file continue to be exempt pursuant to KRS 61.878(1)(h) even if the investigation and prosecution have concluded. Finally, statements of witnesses who were not the subject of the investigation may be exempt pursuant to KRS 61.878(1)(a) as containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of privacy.

In his letter of appeal, Mr. Miller states, in regard to Commonwealth v Herman Dayton, Clark District Court, Case No. 95-F-00145, that Mr. Dayton died August 17, 1995 and the criminal complaints against him were dismissed as a result of his death.

Citing KRS 17.150(2), he argues that, since the criminal complaints have been dismissed, the requested records should be made available to him because that statute provides for the public inspection of records kept by criminal justice agencies, such as the sheriff's office, after the prosecution is completed or a determination not to prosecute has been made.

On October 8, 1996, we sent the Sheriff's Office a “Notification of Receipt of Open Records Appeal” and enclosed a copy of Mr. Miller's letter of appeal. The Sheriff's Office made no response to Mr. Miller's letter of appeal or otherwise refuted the facts presented therein. We therefore assume that the letter of appeal sets forth an accurate statement of the facts.

We are asked to determine whether the denial by the Clark County Sheriff's Office of Mr. Miller's request to inspect the investigative files in the Sheriff's Office relating to the case of Commonwealth v Herman Dayton, Clark District Court, Case No. 95-F-00145, was consistent with the Open Records Act. For the reasons which follow, we conclude that the actions of the Sheriff's Office were inconsistent with the Act.

In the instant case, Mr. Miller requested to inspect all file notes (including those of Detective Stone), all photographs, and all audio tapes (including the taped statement of Jean Davis) in the investigative files in the case of Commonwealth v Herman Dayton. The Sheriff's Office, based upon the advice of the County Attorney, issued a blanket denial of the request, citing KRS 61.878(1)(a), (h), (i), and (j) in support of his denial.

KRS 61.880(1) provides, in substance and in part, that if an agency denies, in whole or in part, inspection of a record, its response must include a statement of the specific exception, among those set forth in KRS 61.878, which authorizes withholding of the record, together with a brief explanation of how the exception applies to the particular record withheld.

Although the response of the Sheriff's Office and the attached letter of the County Attorney in support of the denial set forth the specific statutory exceptions relied upon and a general discussion of some of the classes of documents to which they may apply, the result was a blanket denial in that all items in the investigative file were withheld from inspection.

It has long been the position of this office that the mere invocation of an exception, without an adequate explanation of how the exception applies to the records withheld, does not satisfy the burden of proof imposed on the agency under KRS 61.880(2)(c) and KRS 61.882 to justify the nondisclosure of a public record. 94-ORD-154.

Thus, the denial was procedurally and substantively deficient in that it failed to briefly explain how the cited exceptions applied to specific documents requested but which were withheld from inspection.

Moreover, a blanket denial of inspection of all records of a given class, typically recognized as subject to inspection by the public after an investigation is closed, is too general to support a denial pursuant to KRS 61.878(1)(h). OAG 89-20.

KRS 61.878(1)(h) provides in part that, unless exempted by other provisions of the Open Records Act, the public records exempted under this exemption “shall be open after enforcement action is completed or a decision is made to take no action[.]” In view of this language, and the requirement that the public agency provide a brief explanation as to how a cited exception applies to specific documents withheld from inspection, we further find that the Sheriff's Office failed to make the requisite showing relative to its issuance of a blanket denial of the request to inspect the investigative file by invocation of KRS 61.878(1)(a), (h), (i), and (j).

In addition, under KRS 61.878(1)(h), the “records or information maintained by county attorneys or Commonwealth's attorneys pertaining to criminal investigations or criminal litigation shall be exempted from the provisions of KRS 61.870 to 61.884 and shall remain exempted after enforcement action, including litigation, is completed or a decision is made to take no action.” This section of KRS 61.878(1)(h) applies only to records of the county attorneys or Commonwealth's attorneys. It does not apply to records maintained by the sheriff's office.

Accordingly, the investigative file at issue should be made available for Mr. Miller's inspection. KRS 61.878(4) provides:

If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the nonexcepted material available for examination.

If material or information exists in the file which is exempt under other provisions of the Open Records Act, the agency can redact that portion of the record and make the nonexempt portion available. However, as noted above, the burden of justifying the withholding of public records rests with the public agency. Because the foregoing is dispositive of this appeal, we need not address other issues raised in the appeal.

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 KRS61.880(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 proceeding.

A. B. Chandler III

Attorney General

James M. Ringo

Assistant Attorney General


Distributed to:

Thomas W. Miller

Miller, Griffin & Marks, P.S.C.

271 West Short Street

Suite 700, Security Trust Building

Lexington KY 40507-1292

Gary O. Lawson, Sheriff

Clark County Sheriff's Office

Courthouse Annex

17 Cleveland Avenue

Winchester KY 40391