Opinion of the Court by Justice ABRAMSON.
The Kentucky Open Records Act ("ORA" or "the Act"), Kentucky Revised Statutes (KRS) 61.870 to 61.884, provides in general for the "free and open examination of public records." KRS 61.871. Because the General Assembly has deemed the open examination of some records not to be in the public interest, however, the ORA also provides for exceptions to that general rule of openness. One such exception, the so-called law enforcement exemption, appears at KRS 61.878(1)(h) and, in pertinent part, excludes from the Act's disclosure provisions "[r]ecords of law enforcement agencies ... that were compiled in the process of detecting and investigating statutory ... violations if the disclosure of the information would harm the agency ... by premature release of information to be used in a prospective law enforcement action." Invoking this provision, the City of Fort Thomas, through its police department, denied a request by the Cincinnati Enquirer, the Appellee, to inspect
The Campbell Circuit Court upheld the City's denial of the newspaper's request, but the Court of Appeals, upon its review of the matter, disagreed. Rejecting the City's claim of a blanket exemption for its investigatory file, a majority of the Court of Appeals panel in effect reversed in part and vacated in part the pertinent portion of the trial court's order and remanded with instructions that the file be parsed into exempt and non-exempt portions with the latter released to the newspaper. The appellate court also seemingly ordered the trial court to award fees and costs against the City.
We granted the City's motion for discretionary review to consider the Court of Appeals' ruling in light of this Court's opinion in Skaggs v. Redford, 844 S.W.2d 389 (Ky.1992), a case involving an Open Records Act request for a Commonwealth's Attorney's case file. Although we reject the Court of Appeals' suggestion that an award of attorneys' fees is appropriate against the City, we do agree that the City, unlike a Commonwealth's Attorney, can invoke the law enforcement exemption only upon a more particularized showing than it has made thus far regarding the harm that would result to the agency upon release of the records. To that extent therefore, we affirm the Court of Appeals' order of remand.
In the summer of 2007, Cheryl McCafferty was accused of having shot and killed her husband in the home they shared with their two teenage children in Fort Thomas. Fort Thomas police officers investigated the incident and assisted in McCafferty's prosecution. Following a jury trial in March 2009, McCafferty was found guilty of first-degree manslaughter. Pursuant to an agreement with the Commonwealth, McCafferty then waived her right to appeal in exchange for an eighteen-year prison sentence with the possibility of parole once she had served twenty percent of that sentence.
Among the exhibits introduced at McCafferty's trial were two videotapes recorded by police officers during their initial response to the shooting. One of the recordings was made with a camera mounted on the officer's police car and depicted the outside of the McCaffertys' home while the other recording was made by an officer as he walked through the home. The latter tape depicted both the exterior and the interior of the home, including pictures of the children's bedrooms, and it culminated with pictures of Mr. McCafferty's body.
On March 16, 2009, after McCafferty had been convicted but prior to her sentencing, a local television station requested from the City, pursuant to the ORA, any videotaped interviews made during the investigation. The City gave the station the two aforementioned tapes used at trial, but only after having redacted from the second one footage of the home's interior which, in the City's view, amounted to an unwarranted invasion of the family's privacy.
About three weeks later, the Enquirer submitted its ORA request to the City for "access to, and copies of, the investigation into Robert McCafferty's death." Denying this request in toto, the City invoked the law enforcement exemption, which, the City maintained, provides a blanket exemption for the records of law enforcement agencies until an enforcement action is complete. Noting that, notwithstanding the waiver of her right to appeal, McCafferty
In proceedings before the Attorney General, the Campbell Circuit Court, and the Court of Appeals, the newspaper took issue with the City's invocation of this ORA exemption on several grounds.
Although they agreed with the newspaper that it should have been given the videotapes already released to the television station, the Attorney General and the trial court sided otherwise with the City. In their view, the possibility of a collateral challenge made the enforcement proceeding against McCafferty meaningfully prospective, and "harm" to the agency could be found merely from the possibility that, were the proceeding to be reopened, a prior disclosure of the police file might "thwart its renewed investigation." They ruled, accordingly, that the City had properly invoked the KRS 61.878(1)(h) exemption.
The Court of Appeals likewise held that for the purposes of that exemption a criminal conviction subject to collateral challenge is not "complete," but rather continues to offer the prospect of an enforcement proceeding. The Court of Appeals based its holding on this Court's determination in Skaggs that the law enforcement exemption applied to a prosecutor's litigation files sought under the ORA by the defendant-subject of those files who at that point was a prospective habeas petitioner. The state's interest in prosecuting the petitioner, the Skaggs Court noted, "is not terminated until his sentence has been carried out," 844 S.W.2d at 390, and the Court concluded, accordingly, that "the defense of the prospective habeas corpus proceedings is part of the `law enforcement action' in the [petitioner's] case." Id. Although in this case, unlike Skaggs, a collateral proceeding was not "in the works" at the time of the ORA request, that difference, the Court of Appeals decided, did not amount to a material distinction, and the newspaper has not challenged that decision before this Court. Cf. Mapother v. Department of Justice, 3 F.3d 1533, 1541 (D.C.Cir.1993) (distinguishing, under the parallel exemption provision of the federal Freedom of Information Act, between enforcement actions brought by the agency and actions brought as challenges against the agency, and holding, with respect to the latter, that the exemption can be invoked "so long as such a challenge can reasonably be anticipated").
To begin, it is helpful to observe that when an agency denies an ORA request, the requester has two ways to challenge the denial. He or she may, under KRS 61.882, file an original action in the Circuit Court seeking injunctive and/or other appropriate relief. Alternatively, under KRS 61.880, he or she may, as was done in this case, ask the Attorney General to review the matter. Once the Attorney General renders a decision either party then has thirty days within which to bring an action pursuant to KRS 61.882(3) in the Circuit Court. Although the statutes refer to this second type of Circuit Court proceeding as an "appeal" of the Attorney General's decision, it is an "appeal" only in the sense that if a Circuit Court action is not filed within the thirty-day limitations period, the Attorney General's decision becomes binding on the parties and enforceable in court. Otherwise, this second sort of Circuit Court proceeding is an original action just like the first sort. KRS 61.880(5)(a) (The appeal is to be treated "as if it were an action brought under KRS 61.882."). The Circuit Court does not review and is not in any sense bound by the Attorney General's decision, nor is it limited to the "record" offered to the Attorney General. KRS 61.882(3) (The circuit court is to "determine the matter de novo."). The agency, rather, bears the burden of proof, id., and what it must prove is that any decision to withhold responsive records was justified under the Act. Bowling v. Lexington-Fayette Urban County Gov't., 172 S.W.3d 333 (Ky.2005).
I. A Police Department's Investigatory File is Not Categorically Exempt From Disclosure Under the Open Records Act Merely Because it Pertains To a Prospective Enforcement Action.
A. The Act's Plain Terms Do Not Provide For Such a Categorical Exemption.
Aside from copies of the newspaper's request for records and its police chief's response to that request, the City in this case did not submit any formal proof. Through their pleadings and trial-court briefs, rather, the parties essentially stipulated to the facts summarized above. In particular, they agreed that the Fort Thomas Police Department had compiled, for law enforcement purposes, an investigatory file regarding the death of Mr. McCafferty; that following the investigation and trial Mrs. McCafferty had been convicted of manslaughter; and that Mrs. McCafferty's conviction remained subject to collateral challenge. This last fact, according to the City, is enough to render its entire investigatory file exempt under the Act. We disagree.
As noted at the outset of this Opinion, the General Assembly has declared that the "basic policy" of the ORA "is that free and open examination of public records is in the public interest." KRS 61.871.
The exception at issue in this case, also as noted above, is the law enforcement exemption provided for by KRS 61.878(1)(h). That statute excludes from the application of the ORA
To invoke the law enforcement exemption under the statute's "prospective action" prong, then, as the City claims to do here, the agency
In the first place, the City's asserted presumption of harm — a presumption in effect of non-disclosure — would turn on its head the Act's basic presumption of openness. It would also, by creating a blanket exemption for police files regardless of their contents, run totally counter to the General Assembly's directive that the exemptions from disclosure be "strictly construed." KRS 61.871. Blanket exemptions are also contrary to KRS 61.878(4), which provides that "[i]f any public record contains material which is not excepted under this section [KRS 61.878], the public agency shall separate the excepted and make the unexcepted material available for examination." With its purported blanket exemption, the City would relieve itself of this statutory obligation. Finally, under the City's reading, the statute's "harm" provision becomes mere surplusage, being subsumed by and adding nothing to the "prospective action" provision. This contravenes one of our basic tenets of statutory construction — a presumption that the General Assembly intended "for all of [the statute's] parts to have meaning." Shawnee Telecom Resources, Inc., 354 S.W.3d at 551. For all of these reasons, we reject the City's contention that to invoke the "prospective action" prong of the law enforcement
We hold, rather, that the law enforcement exemption is appropriately invoked only when the agency can articulate a factual basis for applying it, only, that is, when, because of the record's content, its release poses a concrete risk of harm to the agency in the prospective action. A concrete risk, by definition, must be something more than a hypothetical or speculative concern. This holding is consistent with the holdings of numerous courts, the United States Supreme Court included, which, construing similar open record statutes, have likewise rejected claims of a blanket law enforcement exemption and have required instead some factual showing that disclosure of records of the particular kind, or kinds, at issue would prejudice the agency. See, e.g., National Labor Relations Board v. Robbins Tire & Rubber Co., 437 U.S. 214, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978); Sussman v. United States Marshals Service, 494 F.3d 1106 (D.C.Cir.2007); Manna v. United States Dept. of Justice, 51 F.3d 1158 (3rd Cir. 1995); Lesher v. Hynes, 19 N.Y.3d 57, 945 N.Y.S.2d 214, 968 N.E.2d 451 (2012); Fioretti v. Maryland State Board of Dental Examiners, 351 Md. 66, 716 A.2d 258 (1998); Globe Newspaper Co. v. Police Commissioner of Boston, 419 Mass. 852, 648 N.E.2d 419 (1995); Evening News Association v. City of Troy, 417 Mich. 481, 339 N.W.2d 421 (1983); and see, generally, Kristine Cordier Karnezis, VALIDITY, CONSTRUCTION, AND APPLICATION OF STATUTORY PROVISIONS RELATING TO PUBLIC ACCESS TO POLICE RECORDS, 82 A.L.R.3d 19 (1978).
Our holding does not mean that the agency is obliged in all cases to justify non-disclosure on a line-by-line or document-by-document basis. At least with respect to voluminous ORA requests, such as the newspaper's request in this case,
Open Records Act disputes are notorious, of course, for posing unique challenges to our usual adversarial method of dispute resolution. Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973). Whereas in most disputes both sides have more-or-less equal access to the relevant facts, so that factual assertions and legal claims can be adversarially tested, in ORA cases only the agency knows what is in its records. In some cases, the court can assess an agency's exemption claims by inspecting the
It appears that here the City has not yet made any attempt to identify non-exempt records in its file (except for the two videotapes it has already disclosed), and it assuredly has not made any attempt to identify categories of records the particular nature of which renders them exempt. Because the law enforcement exemption cannot be invoked without at least that minimum degree of factual justification, we agree with the Court of Appeals that the trial court erred when it allowed the City a blanket exemption. Accordingly, we affirm the Court of Appeals' decision to the extent that it vacated the trial court's order and remanded with instructions that the City be given an opportunity to make the required showing.
Skaggs v. Redford Does Not Imply a Blanket Exemption For Law Enforcement Records.
Against this result, and in support of what it claims should be a blanket exemption for its police department's investigatory files, the City refers us to Skaggs v. Redford, in which this Court upheld the blanket exemption of a Commonwealth Attorney's prosecutorial files. 844 S.W.2d at 389. In that case, the ORA requester, Skaggs, was a death row inmate who had exhausted all of the state-court avenues for challenging his conviction. He made his ORA request to inspect the prosecutor's files in hopes of finding material to add to a federal-court petition for habeas corpus. The issue before this Court was whether, all means for relief having been exhausted in our state courts, the enforcement action against Skaggs was "complete" under the ORA, or whether the looming federal habeas petition was enough to render the enforcement action still prospective. The Court ruled that for ORA purposes the enforcement action in a criminal prosecution remains prospective "until [the defendant's] sentence has been carried out." 844 S.W.2d at 390. Thus, the Court held that the Act's law enforcement exemption still applied to the prosecutor's files. No issue was raised concerning that exemption's "harm" requirement, but the Court made a couple of comments which, in the City's view, imply that the mere fact that an enforcement action remains prospective is enough to establish that disclosure of anything from a law enforcement file constitutes "harm" under the exemption.
First, the Skaggs Court acknowledged that in 1992, during the pendency of Skaggs's ORA appeal, the General Assembly amended KRS 61.878(1)(g) (now (1)(h)) to provide a blanket exemption from the Act for prosecutors' litigation files regardless of whether the prosecution was "complete." The Court declined to address the retroactivity, and hence the applicability, of that amendment, however, because, in the Court's view, "the Commonwealth['s] Attorney's records in the appellant's case
The City also relies on a second comment in Skaggs. Although as noted "harm" was not made an issue in that case, in response to the requester's contention that under KRS 61.878(4) the prosecutor was obliged to segregate non-exempt material from exempt material and to disclose the former, the Court dismissed the contention as "moot" because in the Court's view "the entire file [was] protected from disclosure until the prosecution of the appellant is completed." 844 S.W.2d at 391. The City maintains that this blanket exemption for the prosecutor's file implies that the harm element of the law enforcement exemption was satisfied for the entire file merely by the prospect of a future enforcement action and should likewise be deemed satisfied in this case. Again, however, we are unwilling to read into Skaggs implicit decisions on issues not before the Skaggs Court and not addressed by it. While the General Assembly has indeed made clear, as Skaggs held, that a prosecutor's litigation files are excluded in toto from the Act, it has made just as clear by singling them out that the prosecutor's files are, in that regard, unique. Other law enforcement records remain subject to the Act, and as discussed above, the Act requires an agency invoking the "prospective action" prong of the law enforcement exemption to show both that the allegedly exempt records pertain to a prospective enforcement action and that release of the records would harm the agency with respect to that action. If a "prospective action" equates with "harm," as the City contends, the General Assembly would have had no reason to specify both, and Skaggs does not imply anything to the contrary.
II. The Trial Court Did Not Abuse its Discretion When it Denied The Newspaper's Motion For Costs and Fees.
The City also takes issue with the Court of Appeals' suggestion that it could or should have been ordered to pay the newspaper's costs and attorney's fees and could also be subjected to penalties.
More is required to trigger this sanction than the erroneous denial of an ORA request. As we explained in Bowling, "[a] public agency's mere refusal to furnish records based on a good faith claim of a statutory exemption, which is later determined to be incorrect, is insufficient to establish a willful violation of the Act.... In other words, a technical violation of the Act is not enough; the existence of bad faith is required." 172 S.W.3d at 343. "Willfulness" and "bad faith" are not necessarily synonymous, of course, but as we indicated in Bowling, for the purposes of KRS 61.882(5), "willful" connotes that the agency withheld requested records without plausible justification and with conscious disregard of the requester's rights. We have characterized a trial court's decision on the issue of willfulness as "a finding of fact" and, as such, it is not to be disturbed on appeal "unless clearly erroneous." Bowling, 172 S.W.3d at 344. A factual finding is not clearly erroneous, moreover, if it is "supported by substantial evidence," i.e., supported by "evidence of substance and relevant consequence having the fitness to induce conviction in the minds of reasonable [persons]." Owens-Corning Fiberglas Corporation v. Golightly, 976 S.W.2d 409, 414 (Ky.1998).
Where "willfulness" is found, the statute still leaves the imposition of fees, costs, and/or penalties to the trial court's discretion. ("Any person who prevails... may ... be awarded costs."). The factors bearing on that determination are apt to include the extent of the agency's wrongful withholding of records; the withholding's egregiousness; harm to the requester as a result of the wrongful withholding, including the expense of litigating the matter; and the extent to which the request could be thought to serve an important public purpose. Cf. Davy v. Central Intelligence Agency, 550 F.3d 1155 (D.C.Cir.2008) (discussing the award of fees and costs under the federal Freedom of Information Act). Only if the trial court has abused its discretion will its fee determination be disturbed on appeal, only, that is, if that determination was "arbitrary, unreasonable, unfair, or unsupported by sound legal principles.". Miller v. Eldridge, 146 S.W.3d 909, 914 (Ky.2004) (citation and internal quotation marks omitted).
Advancing its claim for fees before the trial court, the newspaper parsed its request for records into four parts: records (the videotapes) previously released to the public; records made public by being introduced as evidence at trial; records disclosed to McCafferty during discovery; and "the rest of the file." Because, the newspaper argued, the City could have had no valid reason to withhold any of the records in the first three classes — records which had already been disclosed to McCafferty and so could not possibly compromise any future enforcement action against her — the City's withholding of those records amounted to a willful violation of the Act and entitled the newspaper to an award of costs and fees.
We are not persuaded that the denial of fees was an abuse of the trial court's discretion. It is not clear, to begin with, that the City lacked a plausible justification for its blanket denial of the newspaper's request, including what may be regarded as its implicit request for the previously released videotapes. The City's position throughout the litigation has been that, whenever a law enforcement action is prospective, as it was here, KRS 61.878(1)(h) gives all law enforcement records the same blanket protection from disclosure that it gives a prosecutor's records whether an action is prospective or not. As our discussion of Skaggs indicates, the City's position, while rejected in this Opinion, was by no means an indefensible one. Since it is certainly arguable (at the very least), that the exemption protecting a prosecutor's files extends to records released during the course of litigation, the City could plausibly maintain that the prior release of its records, likewise, did not waive or abrogate its exemption.
We agree with the trial court, furthermore, that even if the disclosure of records by one agency (here the assistant Commonwealth's Attorney) can effect a waiver of another agency's (here the City's) right to assert an exemption, it is not the obligation of the second agency to discover that waiver or to make inquiry as to its scope. The ORA requires the agency to make all reasonable efforts to locate records responsive to the requester's application. KRS 61.872(6) (Official custodian may refuse an application that "places an unreasonable burden" on the agency.). Concomitantly, the requester is required to describe the records he or she seeks so as to make locating them reasonably possible. KRS 61.872(2) ("Official custodian
Finally, even if the City's initial failure to disclose to the newspaper the two videotapes it had previously disclosed to the television station could be deemed a "willful" violation of the Act, the trial court did not abuse its discretion by denying the newspaper's request for fees and costs. As the trial court noted, the newspaper's ORA application did not specify the tapes, but merely requested the entire McCafferty file. The tapes were but a small fraction of that file, and even before the Attorney General opined that they should be released, they were made available to the newspaper at the office of the Circuit Court Clerk along with all the other exhibits introduced at trial. Any detriment to the newspaper, therefore, from the initial withholding of the tapes, or any insult to the Act's basic purpose of openness was de minimus, and the trial court could reasonably conclude that the City's minor violation of the Act did not warrant sanctions. Simply put, the trial court did not abuse its discretion in denying the request for fees and cost.
In sum, the Court of Appeals correctly determined that KRS 61.878(1)(h), the law enforcement exemption, does not create a blanket exclusion from the Open Record Act's disclosure provisions for all law enforcement records pertinent to a prospective law enforcement action. Such records are exempt from the Act, rather, only if their disclosure would harm or interfere with a prospective enforcement action in some significant and concrete way.
MINTON, C.J.; CUNNINGHAM, NOBLE, SCOTT, and VENTERS, JJ., concur.
KELLER, J., not sitting.