Friday, August 19, 2016

Sheriff properly withheld documents that could impair another agency's continuing investigation

A police agency can withhold requested documents if the release of those documents would affect another police agency’s independent investigation that was ongoing.

Attorney General Andy Beshear issued an opinion on Aug. 3, 2016, in In re: The Kentucky Standard/Nelson County Sheriff’s Department, 16-ORD-162.  

On June 7, Forrest Berkshire, editor of The Kentucky Standard, requested documents dealing with the shooting death of Derek Downs in 2009. Sheriff Ed Mattingly notified Berkshire that the request had been declined at the request of Commonwealth Attorney Chip McKay on the basis of KRS 61.878(1)(h). Mattingly also spoke with the lead investigator who thought that releasing the documents may compromise his investigation. He also stated that after the investigation is closed the documents will be open for disclosure. 

Berkshire appealed the following day, stated that the department’s investigation into the death was completed in 2009, and the case against the shooter, Wayne Unseld, was taken to the county’s grand jury, which did not indict him. Unseld died in June. Berkshire also stated that the description of harm stated by the sheriff was not specific enough to satisfy the statute he cited.
Sheriff Mattingly responded it was clear Unseld had shot and killed Downs in 2009, but Unseld had been murdered. The Bardstown police were investigating that murder. Because there was some threats to the Downs family by Unseld, the sheriff believed there was a possibility that information in the Downs case could relate to the Unseld homicide. 

Beshear ruled felt Mattingly “minimally justified invocation of KRS 61.878(1)(h).” The opinion also cited to City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842, 850 (Ky. 2013), which says that the law enforcement exception needs to fulfill three requirements. “(1) that the records to be withheld were compiled for law enforcement purposes; (2) that a law enforcement action is prospective; and (3) that premature release of the records would harm the agency in come articulable way.”

Because the sheriff’s office and Bardstown police are both law enforcement, and Bardstown has an open and ongoing investigation into Unseld’s murder, the records were compiled in the process of an investigation of violations. An earlier attorney general opinion had recognized that when two agencies have concurrent jurisdiction or interest in same matter, records of one can be withheld under the statute if the disclosure can harm the other agency’s ongoing investigation (09-ORD-143). 


AG's office correctly denied request due to overly broad nature to avoid fishing expeditions

Attorney General Andy Beshear issued an opinion regarding his own office in an Open Records opinion issued on July 6, 2016. 

The specificity of the request was at issue In re: Russell Carollo/Office of the Attorney General, 16-ORD-138.

Carollo requested access to and copies of all records dating back to January 2011 related to Deloitte, where he named specific types of documents he was looking for, plus all other public records related to the company. Carollo also requested the attorney general to include information that might be considered technically exempt. 

Beshear’s office responded in a timely manner, having spoken with Carollo the previous day about IRS forms prepared by the company, but having nothing to do with the company itself, stating the forms would not be produced. The office also deemed newsletters that briefly mentioned that the company was in the news were not responsive and would not be produced.

The office also refused to produce preliminary documents, due to the statutory exemption give to those types of documents, along with other work-product and attorney-client privilege materials.
Carollo appealed, asserting that the attorney general's office did not identify withheld materials specifically and because no legal exceptions were cited. The attorney general responded, stating that everything was sufficiently specific in descriptions, and that no partial documents were provided because the statute protects the whole document.

The opinion stated that when materials are non-responsive to an Open Records request, the public agency is not required to cite specific statutory exemptions to justify a denial of the documents. 

The two parties communicated through emails detailing the scope of Carollo’s request, where Carollo stated the attorney general's office could exclude the form 990s prepared by the business in question, but that Carollo wanted any contracts between the Commonwealth and Deloitte. The office provided Carollo with the appropriate agency for him to contact and request copies of such contracts. 

Beshear affirmed the denial of the broad request by Carollo based upon 16-ORD-082, issued at the beginning of May. Because Carollo asked for anything in any way related to Deloitte, even though he named specific types of documents, he left the door wide open when he requested “all public records” that in any way identify Deloitte. The statute requires a person requesting docments to “precisely describe” the records being requested.

Purpose of a request is not a factor a public entity can consider before fulfilling record request

The purpose of an Open Records Act request is an irrelevant point in the public agency's decision to turn over records properly requested. 

Attorney General Andy Beshear ruled against the public official in an opinion in In re: Crystal Emberton/Carroll County Jailer, 16-ORD-136, released July 6, 2016. 

Emberton requested records, videos, and other evidence depicting an incident in the lobby of the county’s detention center on April 12. Three days later, Jailer Michael Humphrey informed Emberton that it would cost $25, plus $5.80 for shipping. The reply also included that if the request was for legal purposes, she was allowed to pay and get the requested records, but if it was for social media, he would refuse the request. 

The money was paid for the records, but Emberton never heard anything more from Humphrey, which prompted her to appeal to Beshear. Humphrey responded to the appeal, which argued that the Open Records Act required Emberton to state the purpose for obtaining the records. It also alleged that there was an exemption because the jail was a law enforcement agency. 

The attorney general's opinion ruled this response and reasoning were not adequate justifications for not provided the requested records. 

Beshear stated the law enforcement exception was not cited properly nor explained in the response, as the act required agencies that are denying a response to specifically state the exception. The law enforcement exception requires that the agency must be involved in an administrative adjudication with information compiled for violations, if disclosure would harm the agency

Beshear assumed in the opinion that the jailer and detention center was a law enforcement agency, but stated that Humphrey failed to establish the requirements of the exception, in that he did not show that the records were compiled “in the process of the detecting and investigating statutory or regulatory violations.”

He also stated that Humphrey failed to illustrate that there would be harm to the agency if the records were released, as per the Kentucky Supreme Court in City of Fort Thomas v. Cincinnati Enquirer, 406 S.W.3d 842 (Ky. 2013). 

Finally, Beshear went over the purpose requirement that Humphrey alluded to. In 08-ORD-080 it is stated that the purpose of how requested records will be used is not material to the decision to comply. This means that an agency cannot require a party to state the purpose of the request and consider it in complying or not complying with the request. 

Humphrey was found in violation because he did not provide a lawful basis to withhold the records.