NOT TO BE PUBLISHED

97-ORD-93

June 13, 1997

In re: Scott Kimble/London City Police Department

Open Records Decision

This matter comes to the Attorney General on appeal from the response of the London City Police Department to Mr. Scott Kimble's open records request, dated April 15, 1997, to inspect the following records of the Department:

1. The Radar Unit's calibration and maintenance records.

2. Officer Van Hook's radar training certification.

3. The tuning forks used to calibrate the radar unit and their calibration certificates.

4. The actual unit that was used.

5. This agency's FCC license.

6. List of models, makes and serial numbers of all radar units being used by this agency.

By letter dated April 17, 1997, Larry G. Bryson, Esq., London City Attorney, responded to Mr. Kimble's request, stating:

I have spoken with Chief Hollon and he informs me that the two of you met yesterday and that you had decided to pursue this information through discovery in Laurel District Court during the pendency of the case regarding your traffic citation. Upon a Discovery Order of the Laurel District Court, the London City Police Department will, of course, provide whatever information is ordered.

If any of the above is incorrect regarding the status of your open records request, please inform me of that fact.

By letter, dated April 22, 1997, Mr. Kimble responded to Mr. Bryson, informing him that there was no agreement with Chief Hollon that he would pursue the information requested through the discovery procedure rather than through an open records request.

In his May 14, 1997 letter of appeal, Mr. Kimble indicated that, as of that date, he had not received the information requested nor a subsequent response from the city police department.

On May 16, 1997, we sent a "Notification of Receipt of Open Records Appeal" to the City and enclosed a copy of Mr. Kimble's letter of appeal. As authorized by KRS 61.880(2) and 40 KAR 1:030, Section 2, Mr. Bryson provided this office with a response on behalf of the London City Police Department relative to the issues raised in the appeal.

In his response, Mr. Bryson explained that the factual setting surrounding this open records appeal related to Mr. Kimble's traffic stop, the resultant criminal charge, and the pending trial of that charge. He stated that it was the Department's position that the information requested was not subject to the Open Records Act because the information that Mr. Kimble seeks is available through discovery in the criminal proceeding. He argues that the Act should not be used as a substitute for discovery.

In addition, the Department argues that the information Mr. Kimble requests is not subject to the Open Records Act because it is part of the police department's investigative files and is exempt from disclosure while his case is pending and until the appeal process is finalized.

We are asked to determine whether the Department's actions were consistent with the Open Records Act. For the reasons which follow, we conclude that the actions of the Department were consistent in part and inconsistent in part with the Act.

KRS 61.880(1) sets forth procedural guidelines for agency response to an open records request. That statute provides:

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 agency action.

In Edmondson v Alig, Ky. App., 926 S.W.2d 856, 858 (1996), the Kentucky Court of Appeals observed:

The language of the statute directing agency action is exact. It requires the custodian of records to provide particular and detailed information in response to a request for documents.

The failure of the Department to provide Mr. Kimble with a written response to his request after learning that there was no agreement to utilize discovery rather than the Open Records Act, constitutes a procedural violation of the Act. Moreover, the Department's response to the letter of appeal is also procedurally deficient in that it does not include a statement of the specific statutory exceptions upon which it relied for withholding the requested records and a brief explanation of how the exceptions applied to the records withheld.

Turning to the substantive issues, we address first the Department's position that the information requested was not subject to the Open Records Act because it could be obtained through the discovery process in the pending criminal proceeding.

Pursuant to KRS 61.880(2), the Attorney General is charged with the duty of reviewing denial of requests to inspect public records to determine if the agencies which issued the denials acted consistent with the provisions of the Open Records Act. It is not this office's duty to rule on whether those requested records are discoverable in a pending criminal action. OAG 91-124.

The presence of litigation does not operate to prevent inspection of public records, since separate statutory grounds for inspection have been provided by the General Assembly. In OAG 89-65, we observed:

Inspection of public records held by public agencies under Open Records provisions is provided for by statute, without regard to the presence of litigation. There is no indication in the Open Records provisions that application of the rules therein are suspended in the presence of litigation. Requests under Open Records provisions, to inspect records held by public agencies, are founded upon a statutory basis independent of the rules of discovery. Public agencies must respond to requests made under the Open Records provisions in accordance with KRS 61.880.

However, in making this observation that the Open Records Act is not suspended in the presence of litigation, we noted:

We do not, in making such observation, suggest that Open Records provisions should be used by parties to litigation as a substitute for requests under discovery procedures associated with civil litigation. To do so tends to circumvent the orderly, balanced process the rules of discovery attempt to provide. Further, where records may subsequently be offered as evidence in court, establishing integrity may be more difficult regarding records obtained under Open Records provisions, than for those obtained under discovery.

Id. Thus, this office has recognized the potential pitfalls of using the Open Records Act as a discovery tool.

Nevertheless, as the Attorney General observed in OAG 82-169:

Although there is litigation in the background of the open records request under review, the requester stands in relationship to the agency under the Open Records Law as any other person. The fact that he may have a special interest by reason of the litigation provides no reason to grant or deny his request to inspect the record.

Thus, we conclude the Department improperly denied Mr. Kimble's request on the basis that he could obtain the requested records through the discovery procedure.

The Department's second basis for denial of the records was that the records are exempt from disclosure because they are part of the police department's investigative files and are exempt from disclosure while the case is pending and until the appeal process is finalized. As noted above, the Department did not cite the specific statutory exemptions upon which it based it denial.

This office has consistently held that records of police departments are, in general, subject to inspection unless specifically exempted by statute. OAG 76-478; OAG 77-102; OAG 79-582; OAG 91-131; 94-ORD-133.

Two relevant exemptions, insofar as they impact on police records, are KRS 17.150, incorporated into the Open Records Act by operation of KRS 61.878(1)(l), and KRS 61.878(1)(h).

KRS 61.878(1)(l) provides that "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly" are excluded from the application of the Open Records Act and shall be subject to public inspection only upon an order of a court of competent jurisdiction.

KRS 17.150(2) provides:

Intelligence 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:

(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;

(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;

(c) Information which may endanger the life or physical safety of law enforcement personnel; or

(d) Information contained in such records to be used in a prospective law enforcement action.

KRS 61.878(1)(h) authorizes the nondisclosure of:

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. . . . The exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884.

Local law enforcement agencies are required to make available for inspection any records they maintain subject to the exceptions contained in these provisions.

Unless the enforcement action, out of which those records are generated, has not been concluded, or another of the exceptions codified in KRS 17.150(2) or KRS 61.878(1)(h) applies to the records, the local police department must make them available for inspection. OAG 91-131.

Police records exempt under KRS 17.150(2) would be those which relate specifically to an ongoing investigation or pending case, or which otherwise fall within

one of the exceptions set out in KRS 17.150(2) (a)-(d).

In order to successfully raise KRS 61.878(1)(h), a public agency must satisfy a three-part test. The agency must first establish that it is a law enforcement agency or an agency involved in administrative adjudication. It must next establish that the requested records were compiled in the process of detecting and investigating statutory or regulatory violations. Finally, the public agency must demonstrate that disclosure of the information would harm it by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action. Unlike any of the other exceptions to public inspection, KRS 61.878(1)(h) specifically provides that the exception "shall not be used by the custodian of records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884." The inclusion of this language imports a legislative resolve that the exception be invoked judiciously, and only when each of these tests has been met.

Thus, a denial of a request for public records by a law enforcement agency, under KRS 61.878(1)(h), must be sustained by proof that: (1) the records in dispute were "records compiled in the course of detecting and investigating statutory violations" (in OAG 89-11, we stated this phrase means those records "actively, specifically, intentionally, and directly compiled, as an integral part of a specific detection or investigative process") and (2) the disclosure of the records would harm the agency by either revealing the identity of an unknown informant or by the premature release of information to be used in the law enforcement action.

As noted above, local law enforcement agencies are required to make available for public inspection, subject to applicable statutory exceptions, any records they maintain or are compiled incident to or occurring in the agency's daily operation which reflect how the law enforcement agency is performing its public function. OAG 91-131; 77-102. This would include those records which reflect the general operation or functioning of the police department, as opposed to records which are part of an ongoing investigation or case and are exempt from disclosure under KRS 17.150(2) or KRS 61.878(1)(h).

Finally, this office has repeatedly recognized that requests for information, as distinguished from records, are outside the scope of the open records provisions. 96-ORD-12. Our position is premised on the notion that open records provisions address only inspections of records and do not require public agencies or officials to provide or compile specific information to conform to the parameters of a request. OAG 89-77.

Moreover, a public agency is not obligated to compile a list or create a record, if one does not already exist, to satisfy an open records request. 96-ORD-251.

In conclusion, denial of an open records request must be articulated in terms of the requirements of the statute. The agency thus has the burden of justifying the withholding of records by reference to the appropriate exception, and by briefly explaining how it applies to the records withheld. KRS 61.880(1).

It is the decision of this office that the Department failed to meet its burden of establishing that any of the requested documents fall within the exceptions for disclosure. Accordingly, the requested records should be made available for Mr. Kimble's inspection. The requests for the tuning forks and the actual radar unit used are requests for either objects or information, not records, and, thus, do not come within the purview of the Open Records Act.

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 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 proceeding.

A. B. CHANDLER III

ATTORNEY GENERAL

James M. Ringo

Assistant Attorney General

# 538

Copies of this decision

have been distributed to:

Scott Kimble

790 Parker Road, #4

London KY 40741

Larry G. Bryson

Attorney at Law

Bledsoe and Bryson

408 North Main Street, Ste. 2

London KY 40741