Request By:
Mr. Terry Sellars
Commissioner of Law
Lexington-Fayette Urban County
Government
Lexington, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Carl Miller, Assistant Attorney General
Mr. John P.C. Silva, City/State Editor, Lexington Herald, has appealed to the Attorney General under KRS 61.880(2) concerning an open records request made to Chief John P. McFadden, Division of Police, Lexington/Fayette Urban County Government. The letter of appeal, dated July 20, 1982, states that the newspaper is seeking all records relating to a criminal investigation of Nolan Simpson and all records relating to all internal police division investigations of Officer James William Read. By phone call on July 23, 1982, Mr. Silva informed us that the Division of Police had provided all the requested information concerning Officer Read and that the only issue remaining for an open records appeal involved the records pertaining to Nolan Simpson, deceased.
We note that in your letter of July 16, 1982 to Mr. Silva you stated the following:
"The Urban County Police Department may be able to respond to specific questions regarding Nolan Simpson, if the information is irrelevant to prospective law enforcement action involving other persons or to internal division investigations of a police officer and I invite you to submit any specific questions you have regarding Nolan Simpson."
In view of your position concerning information pertaining to the deceased, Mr. Simpson, we preceive that there are two questions remaining to be answered on this appeal:
(1) May the exceptions to mandatory public disclosure provided by KRS 61.878(1) be applied to records pertaining to a deceased person?
(2) Must a requester state with specificity the information he desires about a deceased person or may he inspect the original records in toto.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that a deceased person has no right of privacy under the Open Records Law, KRS 61.878(1)(a). Police records pertaining to Nolan Simpson cannot be withheld from public inspection on that basis.
It is also our opinion that a requester is entitled to inspect the original records and is not required to submit specific questions regarding a deceased person. This is not to say that some records pertaining to a deceased person may not be withheld from public inspection under one of the exceptions provided in KRS 61.878(1) other than (a). Subsection (f) may apply if release of information would impede an ongoing investigation and you were correct in including that qualification in your response to Mr. Silva's request. However, we believe that it is the duty of the custodian to sort out the exempt material and allow the requester to inspect the remaining records.
Records which are preliminary recommendations, and preliminary memoranda in which opinions are expressed or policies formulated or recommended are exempt under KRS 61.878(1)(h) and do not lose their exempt status with the passage of time. However, records showing police action such as warrants, arrest records and investigations of complaints which do not contain opinions of the officer are not exempt from public inspection.
In summary, it is the opinion of the Attorney General that the police records pertaining to Nolan Simpson, deceased, should be made available for public inspection in accordance with this opinion.
A copy of this opinion is being sent to the requester as directed by statute.