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). 


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