NOT PUBLISHED
94-ORD-53
April 19, 1994
IN RE: Dave Baker/City of Frankfort Police Department
OPEN RECORDS DECISION
This appeal originated in a request for public records submitted by Mr. Dave Baker, a staff writer for The State Journal, to the City of Frankfort Police Department on February 22, 1994. Those records are identified as the "original incident report leading to the suspension of Patrolman William Sullivan and any memos pertaining to this allegation of misconduct," as well as the emergency service dispatch log for January 16. In a letter dated February 24, 1994, Police Chief Ted W. Evans denied Mr. Baker's request. Relying on KRS 61.878(1)(g), he explained that the disputed records "are involved in an incomplete administrative adjudication and prospective law enforcement action that may be jeopardized by premature release." This appeal followed.
Unable to resolve this matter on the facts presented, this Office requested additional information from the City of Frankfort Police Department on March 3, 1994. Pursuant to KRS 61.880(2), we asked that Chief Evans substantiate the Department's position by explaining, in general, the nature of the administrative adjudication and prospective law enforcement action which the Department has undertaken, and how release of these records would jeopardize the actions. In addition, we asked that he respond to Mr. Baker's assertion that incident reports and police blotters are typically treated as public records, regardless of whether administrative adjudication or law enforcement action is pending.
In a response dated March 10, 1993, Chief Evans elaborated on the Department's position.
On the date of Mr. Baker's initial open records request . . . there was no incident (offense) report and Mr. Baker was so informed. He modified the request to include 'any memos pertaining to this allegation of misconduct.' Mr. Baker's second request . . . was for 'written copies of the emergency services dispatch log for the day of Jan. 16, 1994.'
Mr. Baker's first request was refused because the incident report did not exist and because the memoranda reporting the allegations, witness statements, and reports of interviews are exempt from disclosure according to KRS 61.878(1)(g) as all were compiled in the process of detecting and investigating statutory or regulatory violations that were in the process of being administratively adjudicated. Additionally, premature release of the information would damage final administrative adjudication and prospective law enforcement action in the form of criminal prosecution.
Final administrative adjudication did not occur until the Frankfort City Commission, the employing authority, accepted the accused officer's resignation on March 5th. At that point, release of information was refused based on the exemption provided to avoid premature release of information to be used in a prospective law enforcement action based on the victim's expressed intent of going forward with efforts to seek a grand jury indictment through the Commonwealth Attorney's office.
To facilitate our review of these issues, Chief Evans furnished this Office with copies of the records and reports in dispute. Those records were not disclosed to other parties, and have been destroyed.
The question presented in this appeal is whether the City of Frankfort Police Department properly relied on KRS 61.878(1)(g) in denying Mr. Baker's request. For the reasons
set forth below, we conclude that the Department sustained its burden of proof relative to its denial of Mr. Baker's request for "memos pertaining to [the] allegation of misconduct" and for the incident report. The Department may withhold these documents until law enforcement action has been concluded. However, the Department did not, in our view, sustain its burden of proof relative to its denial of his request for the emergency services dispatch log for January 16, and must make the log available to Mr. Baker for immediate inspection.
Among the records which may be excluded from public inspection in the absence of a court order are those described at KRS 61.878(1)(g):
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[.]
This Office has consistently recognized that records of law enforcement agencies which are "compiled in the process of detecting and investigating statutory or regulatory violations" may properly be withheld until enforcement action is completed if premature disclosure of the information contained in those records would harm the agency. Thus, in OAG 83-366 we held that the Kentucky State Police properly denied a request for investigative records in its custody. At page two of that opinion, we observed:
Since you indicate that these are still active files, they are therefore not open to public inspection until prospective law enforcement action or administrative adjudication is complete or a decision is made to take no action. KRS 61.878(1)[(g)]
provides that records exempted under this section are open after the decision to act or not to act is made. However, even after the case files are closed, certain documents may still be withheld from public inspection. These include information which will reveal a confidential informant, information of a personal nature, and information which may endanger the life of a police officer. [Citations omitted.]
This position is consistent with a number of opinions issued by this Office holding that records maintained by criminal justice agencies in conjunction with an ongoing investigation are not subject to inspection until after prosecution is completed or a determination not to prosecute is made. OAG 76-124; OAG 82-280; OAG 83-356; OAG 85-93; OAG 86-81; OAG 87-15; OAG 88-27; OAG 90-143; OAG 91-91; OAG 92-109.
In his March 10 response to this Office's request for additional information, Chief Evans explained that although final administrative adjudication occurred on March 5 when the Frankfort City Commission accepted Officer Sullivan's resignation, the Department continues to rely on KRS 61.878(1)(g) "to avoid premature release of information to be used in a prospective law enforcement action based on the victim's expressed intent of going forward with efforts to seek a grand jury indictment . . . ." Our examination of the disputed records supports the Department's position. They can, in general, be described as a series of complaints, witness statements, and interviews bearing on the incident which precipitated Officer Sullivan's resignation. We concur with Chief Evans in his view that disclosure of the records at this time might jeopardize future prosecution. Because there was no incident or offense report prepared by the Department, Chief Evans properly advised Mr. Baker that this portion of his request could not be satisfied. This response was sufficient and proper under the Open Records Act. See, e.g., OAG 83-11; OAG 87-54; OAG 88-5; OAG 91-112; OAG 91-203.
We do not concur with Chief Evans in his view that release of the emergency services dispatch log for January 16, 1994, would impede effective prosecution. Although we have recognized that a police department may, on occasion, "feel it necessary to withhold certain items from public inspection in order to protect a police officer or an informant," and that it must, on these occasions, "justify the refusal of inspection
with specificity," we have generally ruled that "records of police departments showing complaints received from citizens and other incidences occurring in its daily operation are open to public inspection." OAG 77-102, at p. 2; See also, OAG 82-70; OAG 89-20; OAG 89-68; 93-ORD-41.
At page 3 of OAG 89-20, we observed:
Police dispatch logs are typically seriatim notations, commonly of a summary character, of police dispatches and disposition codes, compiled collaterally to, and not integrally in the process of, detecting and investigating statutory violations, in contrast to, for example, an investigator's notes. Such logs have never been granted blanket exclusion from inspection by the public in this state. In order to be exempted from inspection pursuant to KRS 61.878(1)[(g)], particulars regarding given notations on a log would have to be articulated in terms of the requirements of the statute.
The Frankfort Police Department failed to justify its denial of Mr. Baker's request for the dispatch log in terms of the requirements of the statute. Although the Department may mask the names of complainants, as well as other identifying information, it must release the dispatch log for inspection. OAG 84-315; OAG 85-136; OAG 86-60; OAG 89-52; OAG 90-12; OAG 91-160.
Mr. Baker and the City of Frankfort Police Department may challenge this decision by initiating action in the appropriate circuit court. 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.
CHRIS GORMAN
ATTORNEY GENERAL
AMYE B. MAJORS
ASSISTANT ATTORNEY GENERAL
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Distributed to:
Police Chief Ted W. Evans
City of Frankfort Police Department
315 West Second Street
P. O. Box 697
Frankfort, KY 40602
Mr. Dave Baker
The State Journal
321 West Main Street
P. O. Box 368
Frankfort, KY 40602