AG Opinions

A reporter for WLKY-TV, Andy Alcock, submitted open records requests to Louisville police for records pertaining to allegations and complaints leveled against two police officers.

Alcock submitted his written request on Aug. 20, seeking access to “any information available about a possible sexual harassment complaint against Sgt. Dale Thompson ... (made by) a female officer at the 3rd District on the flex platoon...” He also requested access to “any information available on Officer Terry Compton... (who was reportedly) moved out of the 4th District following a complaint by an African-American officer claiming Compton referred to the officer’s child using a racial pejorative.”

Within a few days of the requests’ submission, and in response to Alcock’s telephone inquiries, Division of Police public information officer Helene Kramer orally advised him that there was no sexual harassment complaint against Sgt. Thompson. He received no written response.

On Aug. 27, Alcock submitted a second request and asked for “any information on the most recently completed internal investigation of Lieutenant Dale Thompson,” including “the nature of the complaint, who made it,... and how the complaint was resolved.” He also requested access to “information involving the off-duty traffic accident of Officer Reuben Highsmith, and the resulting investigation of Major Don Burbrink and others.” Three days later, Alcock received a response from the Division of Police that in regard to his first request, it was being researched to determine “what, if any, documents may be available.” The response noted that any documents released would include only those “that initiate the investigation and the disposition of the case.”

The agency’s response also stated that the investigation regarding Officer Highsmith was pending which meant no documents were available for release.

After a series of renewed telephone inquiries, Alcock received two records on Sept. 7: a memorandum from Colonel Greg Smith dated Aug. 14 and sent to the Office of Professional Standards (OPS) requesting that OPS investigate an allegation of discrimination leveled against Thompson by a female officer in the 3rd District Flex Unit, and a memorandum dated Aug. 20 from Smith to Thompson that states in full: “this letter is to advise you that the complaint against you, OPS #01-133, has been resolved as: Rule 2.023, Commanding Officers, Not-Sustained. This investigation is now closed.”

These records, sent to Alcock by fax, apparently contained no accompanying response that outlined the basis for the Division’s partial denial of Alcock’s request.

Assistant Attorney General Amye Bensenhaver ruled the Division of Police violated the state’s Open Records Law in its response to Alcock and also that the agency “failed to satisfy its statutory burden of proof in sustaining the partial denial of those requests.”

Stephanie Harris, Assistant Director of Law for the City of Louisville, responded to the AG’s office and defended the Division’s actions. She said verbal communication between Alcock and a police department representative informed Alcock that no sexual harassment complaint existed, so therefore no records relating to such a complaint could be produced.

Harris also explained, apparently for the first time, in her response to the AG that at the time of Alcock’s first open records request, two internal affairs investigations were pending but “not related to the incident described in Mr. Alcock’s request.” Alcock had made reference to alleged racial comments by Officer Terry Compton that resulted in him being moved to a different unit. Since those investigations were still pending, according to Harris, “... no records will be released until the completion of those investigations.”

The Division didn’t violated the three business day notification required in the Open Records Law, according to Harris, because of the verbal communication between Alcock and the police department representative, noting such communication via telephone is common among media and public information employees.

Harris’ argument that the primary dispute in this case was whether the Division of Police had responded to Alcock’s requests in a timely fashion was disputed by Bensenhaver.

“Instead, we believe the issues are broader in scope, touching upon the fundamental issue of the public’s right of access and the agency’s statutory duty to sustain its action, here, the partial denial of an open records request,” Bensenhaver wrote. “Consistent with the longstanding position taken by this office that the requirements set forth at KRS 61.880(1) ‘are not mere formalities, but are an essential part of the prompt and orderly processing of an open records request,’” we fine that the Division’s responses were both procedurally and substantively deficient. Significantly, no legally recognized basis for partially denying Mr. Alcock’s request has been asserted to date.”

Bensenhaver also noted that twice in the past year, the AG has determined that an agency’s “inability to produce records due to their nonexistence is tantamount to a denial, and that it is incumbent on the agency to so state in clear and direct terms... While it is obvious that an agency cannot furnish that which it does not have or which does not exist, a written response that does not clearly so state is deficient.” She also wrote that the Open Records Act requires all public agencies to “notify in writing” the requester, within the three-day period of its decision, without exception so the Division’s informal practice of responding to media requests is improper.

The Division also failed to comply with the law in regard to Alcock’s Aug. 27 request, according to Bensenhaver. She wrote that although the Division issued a “timely” response, the response was deficient because it failed to include a detailed statement of the place, time and earliest date on which the records would be available for inspection. Also, more importantly, when the records were released in part on Sept. 7, the Division failed to provide a written statement of the specific exemption authorizing the withholding of the remaining investigative records and an explanation of how the exemption applies to the records withheld.

Bensenhaver noted that when the AG’s office reviewed the disputed records in order to respond to Alcock’s appeal, an extensive investigative file was included that the Division never evoked an exemption to withhold.

“The Division of Police, having failed to advance any legally recognized basis for partially denying him the investigative file, must disclose the file to Mr. Alcock or assert one or more of the exceptions” in an appeal of the AG decision, wrote Bensenhaver.

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