Request By:
Mr. William T. Warner
Nold, Mosley, Clare, Hubbard & Rogers
Fifth Floor
The Hart Block Building
730 West Main Street
Louisville, Kentucky 40202
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
You have requested an opinion of the Attorney General on behalf of the Jefferson County Police Department, which your law firm represents, as to the general and specific authority of the district and circuit courts to order expungement of records of arrests, including finger print cards and photographs of various individuals who have applied to these courts for expungement orders.
You make reference, inter alia, to an opinion rendered June 8, 1978 in the Jefferson Circuit Court, Division Fourteen, by the Honorable S. Rush Nicholson, in the case of Commonwealth v. Brumleve, No. 78-XX-0028, ruling on a "Motion to Void Conviction, Dismiss and Expunge Record per KRS 218A.990(K). The opinion holds that the statute does not authorize a district court to expunge the record of a person convicted of illegal possession of marijuana after he has served 90 days in a rehabilitation facility, the penalty provided by the statute for first offenders.
We think that Judge Nicholson properly interpreted KRS 218A.990(K) and we also agree with the final paragraph of his opinion which says: "In conclusion it would appear that there is no power vested in the trial court in Kentucky to expunge a criminal record involving a conviction." However, subsequent to Judge Nicholson's opinion, the 1980 session of the general assembly enacted a new statute which is codified as KRS 17.142 which reads as follows:
"(1) Each law enforcement or public agency in possession of arrest records, finger prints, photographs, or other data whether in documentary or electronic form shall upon written request of the arrestee as provided herein segregate all records relating to the arrestee in its files in a file separate and apart from those of convicted persons, if the person who is the subject of the record:
(a) is found innocent of the offense for which the records were made; or
(b) has had all charges relating to the offense dismissed; or
(c) has had all charges relating to the offense withdrawn.
(2) A person who has been arrested and then has come within the purview of subsection (1) of this section may apply to the court in which the case was tried, or in which it would have been tried in the event of a dismissal or withdrawal of charges, for segregation of the records in the case. Upon receipt of such application the court shall forthwith issue an order to all law enforcement agencies in possession of such records to segregate the records in accordance with the provisions of this section.
(3) Each law enforcement agency receiving an order to segregate records shall forthwith:
(a) Segregate the records in its possession in a file separate and apart from records of convicted persons;
(b) Notify all agencies with which it has shared the records or to which it has provided copies of the record to segregate records; and
(c) All records segregated pursuant to this section shall show disposition of the case."
We believe that KRS 17.142, jst quoted, settles the question as to the expungement of police records by order of a court and mandates that the records are not to be expunged but "segregated. " Prior to the enactment of this statute there was not in effect in Kentucky a statute giving general power to courts to expunge police records, and KRS 17.142 does not give such power. (See OAG 76-598.) The statute only authorizes the segregating of arrest records, et cetera, not court records. (See OAG 80-460.) Some federal courts have held that courts have the inherent power to order the expungement of records of arrests 1 but even if that were formerly the case in Kentucky, which we doubt, the legislature has now specifically fixed the public policy against expungement by providing for the segregating of police records in certain instances described by the statute.
We trust that when the judges are made aware of KRS 17.142 they will no longer order expungement of arrest records but will word their orders to conform with the statute In any event, it is our opinion that the Jefferson County Police Department and all other law enforcement agencies in this state should not destroy any arrest records unless ordered to do so by a court of last resort. Of course, court orders must either be obeyed, appealed or collaterally attacked in a declaratory judgment action.
At common law court records are to be kept inviolate 20 Am. Jur 2d Courts, sections 51-60. We believe that the common law rule prevails in Kentucky but that KRS 17.142 has now modified the rule to the extent of its provisions.
Footnotes
Footnotes
1 Bilick v. Dudley, S.D. N.Y. 356 F. Supp. 945 (1973); Hughes v. Rizzo. E.D. Penn, 282 F. Supp v. Rizzo. E.D Penn., 282 F.Supp 881 (1968), Menard v. Saxbe, U.S. C.A., D.C. Cir., 498 F.2d 1017 (1974)