ON REVIEW FROM COURT OF APPEALS CASE NO. 2010-CA-001072-MR CAMPBELL CIRCUIT COURT NO. 09-CI-01145
COUNSEL FOR APPELLANT: Jeffrey C. Mando Jennifer H. Langen
COUNSEL FOR APPELLEE: Paul Alley John C. Greiner
COUNSEL FOR AMICUS CURIAE: Jon L. Fleischaker Jeremy Stuart Rogers
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(l)(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 and copy the entire police file generated during a then-recent homicide investigation. After an unsuccessful appeal to the Attorney General, the Enquirer brought the present action pursuant to KRS 61.882.
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 could still challenge her conviction collaterally pursuant to Kentucky Rule of Criminal Procedure (RCr) 11.42, the City asserted that the enforcement action against her was not "complete" and that its case file regarding her was thus exempt in its entirety from the ORA.
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. First, the newspaper maintained that the "enforcement proceeding" against McCafferty was "complete, " inasmuch as her waiver precluded any direct appeal and because her sentencing agreement made a collateral challenge unlikely. Even if the enforcement proceeding against McCafferty could still be deemed "prospective, " moreover, the law enforcement exemption applies only to disclosures that would "harm" the agency in such a proceeding, and, the newspaper contended, the City had made no showing of harm. This, the newspaper insisted, was especially and patently so with respect to those portions of the police file already disclosed to ...