Request By:
Mr. Livingston Taylor
Courier-Journal News Bureau
730 Shelby Street
Frankfort, Kentucky 40601
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Carl Miller, Assistant Attorney General
You have made a request, assertedly under the Kentucky Open Records Law, KRS 61.870-61.884, to inspect a copy of the report which this office recently sent to Commonwealth Attorney Ray Corns on an investigation of the circumstances of the state's disposal of two vehicles, a 1972 Ambassador and a 1970 Scout. The investigation was requested by the then Acting Secretary of the Executive Department of Finance and Administration, Charles Lambert, and was made by our Prosecutorial Unit.
To respond to your request we must first point out, what should be apparent, that there is the possibility of criminal prosecution related to the substance of the report. This fact should trigger a warning signal to lawyers and journalists. It should evoke recollections of famous Supreme Court decisions of the not very distant past.
One celebrate case is that of Dr. Sam Sheppard who was convicted in an Ohio court in 1954 of murdering his wife. Twelve years later the Supreme Court voided his conviction. (Sheppard v. Maxwell, 384 U.S. 333, 16 L. Ed. 2d 600 (1966)) On retrial Sheppard was found not guilty, but by then his life had been ruined. The Supreme Court voided the judgment of the first trial because it found that publicity generated by the news media abetted by local officials, the trial judge, the police and the prosecutor, deprived Sheppard of due process of law as guaranteed by the Sixth and Fourteenth Amendments in the Bill of Rights. Aiming its criticism at the judge and officials, the Court said:
". . . Had the judge, the other officers of the court, and the police placed the interest of justice first, the news media would have soon learned to be content with the task of reporting the case as it unfolded in the courtroom -- not pieced together from extrajudicial statements.
"From the cases coming here we note that unfair and prejudicial news comment on pending trials has become increasingly prevalent. Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is nothing that proscribes the press from reporting events that transpire in the courtroom. But where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge should continue the case until the threat abates, or transfer it to another county not so permeated with publicity. In addition, sequestration of the jury was something the judge should have raised sua sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial should be ordered. But we must remember that reversals are but palliatives; the cure lies in those remedial measures that will prevent the prejudice at its inception. The courts must take such steps by rule and regulation that will protect their processes from prejudicial outside interferences. Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration between counsel and the press as to information affecting the fairness of a criminal trial is not only subject to regulation, but is highly censurable and worthy of disciplinary measures." 384 U.S. 362, 363.
In the Sheppard case there was publicity of many matters unfavorable to Sheppard which were never presented in court; prospective witnesses were interviewed by the news media, which in many instances disclosed their testimony; there was release of leads, information, and gossip to the press by the prosecuting attorneys, the coroner, police officers and witnesses; newsmen handled and photographed trial exhibits. There were also other prejudicial factors which caused the Supreme Court of Ohio to say, and the United States Supreme Court agreed: "In this atmosphere of a 'Roman holiday' for the news media, Sam Sheppard stood trial for his life." 384 U.S. 356.
While considering the rights of defendants, the Supreme Court has not been unmindful of the Freedom of the Press. In a 1976 case, Nebraska Press Association v. Stuart, Judge, 427 U.S. 539, the Court said:
"The extraordinary protections afforded by the First Amendment carry with them something in the nature of a fiduciary duty to exercise the protected rights responsibly -- a duty widely acknowledged but not always observed by editors and publishers. It is not asking too much to suggest that those who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort to protect the rights of an accused to a fair trial by unbiased jurors. "
We need not further lecture the press as to its duty on matters which may involve criminal prosecution. Your request makes it necessary for us to state our responsibility in the handling of information, evidence, allegations and innuendo which may be in our hands. The Attorney General, as part of the prosecutorial system of the Commonwealth, wants to make sure that we do not prejudice any future defendant. We want the trial to be in the courtroom and not in the newspaper. The Supreme Court reversed the first conviction of Billie Sol Estes because his trial was televised. Estes v. Texas, 381 U.S. 52, 14 L. Ed. 2d 543 (1965). Estes was a notorious swindler, but he had to be retried because, as the Court said:
"A defendant on trial for a specific crime is entitled to his day in court, not in the stadium, or a city or nationwide arena. 14 L. Ed. 2d 554
The goal of a prosecutor should be to give every defendant a fair trial in court, a trial that will not be reversed on appeal. In order to do this the prosecutor must save his evidence and his arguments for the courtroom.
On the subject of your request, this office investigated the designated matter and reported its data to the Commonwealth Attorney whose duty it is to prosecute if, after making his own evaluation, he believes he has sufficient evidence that a crime has been committed. The prosecutor may present the evidence he has to the grand jury and the grand jury may or may not return an indictment. If the grand jury fails to indict, the defendant shall be discharged or exonerated of bail, but the evidence can be presented to another grand jury. RCr 5.22. No responsible prosecutor will disclose his evidence to the public before an indictment has been returned.
The Open Records Law does not require a prosecutor to submit his papers about a case still pending to public inspection. KRS 61.878(1)(f) expressly exempts such records:
"(f) Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled in the process of detecting and investigating statutory or regulatory violations if the disclosure of the information would harm the agency by revealing the identity of informants not otherwise known or by premature release of information to be used in a prospective law enforcement action or administrative adjudication. . . ."
Also papers and reports of investigators are exempt by KRS 61.878(1)(g) and (h) as preliminary drafts, notes, preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended.
Also, it is provided in KRS 17.150(2):
"(2) Intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection providing prosecution is completed or a determination not to prosecute has been made. However, portions of such records may be withheld from inspection if such inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in such records to be used in a prospective law enforcement action.
We must deny your request to see the investigative report because of ethical and constitutional reasons, but in so doing we are supported by the above cited statutory provisions.