Request By:
Captain Phillip F. Redmon
Operations Commander
Frankfort Police Department
315 West Second Street
P.O. Box 697
Frankfort, Kentucky 40602
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. Sam G. McNamara, Attorney for the State Journal, has appealed to the Attorney General pursuant to KRS 61.880 your denial of inspection of certain public records in your custody. The records are described as "investigation reports concerning an alleged shooting incident involving Sheriff Harrod on January 22, 1983." By letter dated March 29, 1983 you denied the request and relied on KRS 17.150(2) which provides that 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. You state the following: "Although we have exhausted all leads at this time, and this case has been placed in an inactive file with many similar cases, neither of the determinations have been made as required by KRS 17.150(2)."
In his letter to the Attorney General Mr. McNamara argues that there is no basis for calling the case inactive when it is, in fact, closed; that there is nothing further to investigate nor is there any one subject to prosecution; that there is no valid reason for denial of inspection of the investigation report connected with the sheriff's complaint.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that you acted in accordance with the Open Records Law, KRS 61.870 to 61.884, and the Criminal Statistics Law, KRS 17.150, in denying inspection of the investigative file requested. We believe that there is a difference between a case being "inactive" and "closed." KRS 17.150(2) reads as follows:
"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 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 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 prospective law enforcement actions."
We think that it is implied in this statute and its companion statute, KRS 61.878(1)(f), that the investigative files which are to be open to public inspection are those pertaining to a named suspect after that suspect has been prosecuted or a decision has been made not to prosecute him. We believe that in a case where no suspect has been determined and active investigation has ceased because the investigators can find no other trails to follow, the case has become inactive but is not closed. To hold otherwise would be to open up to public inspection all of the police investigative files where the investigation has become fruitless and indefinitely suspended.
"Investigative reports are nearly always withheld from public inspection to protect sources of information and techniques of investigations and also to prevent premature disclosure of their contents to the targets of investigation, which could thwart law enforcement efforts. At the same time, a nondisclosure policy is dictated by the fact that such material typically contains hearsay and uncorroborated allegations about individuals who may be innocent and whose reputations could be unfairly injured by publication. The publication of erroneous information about an individual can invade his privacy as much as dissemination of accurate information which he does not wish to be disclosed. Thus, both governmental and individual interests support the denial of access to investigative reports, except where the subject individual seeks such access to examine it himself." Privacy: Personal Data and the Law, copyright 1976, National Association of Attorneys General.
It is generally within the discretion of the police department to decide when a case is merely inactive or is finally closed. We note that the shooting incident complained of occurred on January 22, 1983 -- a little over two months ago. We cannot say how long the police department should consider the case inactive before declaring it closed but we would remind you of the provision of KRS 17.150(3):
"When a demand for the inspection of such records is refused by the custodian of the records, the burden shall be upon the custodian to justify the refusal of inspection with specificity. Exemptions by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section."
As directed by statute a copy of this opinion is being sent to the requester who has the right to challenge it in court as provided by KRS 61.880(5).