Request By:
Major Bobby Stallins
Official Custodian of Records
Kentucky State Police
Frankfort, Kentucky 40601
Opinion
Opinion By: Steven L. Beshear, Attorney General; Carl T. Miller, Jr., Assistant Attorney General
Mr. W. Patrick Stallard, attorney, has appealed to the Attorney General pursuant to KRS 61.880 the denial of his request to inspect certain public records in your custody as official custodian of the records of the state police. The records are of two categories and are described as follows: (1) Any and all files and complete contents thereof, including all written, typed, printed, recorded, taped and graphic matter in the possession, custody or control of the Bureau of State Police regarding an investigation of bid rigging on state highway construction contracts initiated on or about September, 1979, and involving the following employees of the Bureau: Ralph Ross, Tony Frazier, John Goble and George Robinson; (2) Any and all internal investigative files concerning the investigation as described in request No. (1) but compiled and prepared in connection with an administrative investigation by the Internal Affairs Division of the Bureau of State Police regarding the conduct of persons involved in and the propriety of closing said bid rigging investigation.
You denied inspection of both categories of records by letter dated January 20, 1983 stating that inspection of described records (1) was being denied on the basis of KRS 61.878(1)(f) for the reason that "this is a joint investigation involving this agency and federal authorities. This investigation is still open and prosecution of charges are anticipated." You denied inspection of described records (2) on the basis of KRS 61.878(1)(h) stating: "This file which you seek to review, in our opinion, are excluded by the above-noted section because it consists entirely of memoranda/reports written by officers who had some knowledge of the incident under investigation wherein an opinion was expressed or a recommendation was made. The memoranda/reports are preliminary in nature because none of the writers possessed any independent authority to impose disciplinary action. They merely serve as fact finders for the Commissioner of the Department of State Police and make recommendations to him."
Mr. Stallard states in his letter to the Attorney General that he has been informed by the state police that the bid rigging matter is not being actively investigated by the state police at this time, that there are no plans to reactivate the investigation at the state level, and that the files are being characterized as part of an open investigation only because federal authorities may use information gathered by the state police in the federal investigation independent of any participation by state authorities. We have not sought to verify this statement by Mr. Stallard because we consider it immaterial to the Open Records questions presented.
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, in denying inspection of request No. (1). The portion of the statute relied on by you is KRS 61.878(1)(f) which reads as follows:
(1) The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
(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 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. Unless exempted by other provisions of KRS 61.870 to 61.884, public records exempted under this provision shall be open after enforcement action is completed or a decision is made to take no action. Provided, however that the exceptions provided in this subsection shall not be used by the custodian of the records to delay or impede the exercise of rights granted by KRS 61.870 to 61.884."
We believe that where, as in this case, there is concurrent state and federal jurisdiction to prosecute for crime state and federal authorities have a mutual interest in the investigation made by either jurisdiction. The fact that state authorities have decided not to prosecute does not mean that their investigative records must now be made available for public inspection if the joint investigation is still open and there is the possibility of federal prosecution. Since the premature release of the state's investigative file at this time might interfere with the prosecution by the federal authorities we believe that the exceptions provided KRS 61.878(1)(f) applies and that you acted properly in denying inspection of the records.
Besides the statutory exemptions there is a constitutional due process consideration involved with this type of records. If the described records are to be open at all they are open to the public generally under the Open Records Law. Premature release of investigative files can lead to pre-trial publicity and make a fair trial more difficult. Criminal trials should be tried in the courtroom, not in the newspaper. (See OAG 78-639).
As to request No. (2), we believe that you also acted in accordance with the Open Records Law in denying inspection. In
City of Louisville v. Courier Journal, Ky.App., 637 S.W.2d 658 (1982) the Court of Appeals held that KRS 61.878(1)(g)(h) protect police internal affairs reports from being made public. The Court said on page 660:
"In summary, we hold that the investigative files of internal affairs are exempt from public inspection as preliminary under KRS 61.878(1)(g)(h). This does not extend to the complaints which initially spawned the investigation. The public upon request has a right to know what complaints have been made and the final action taken by the chief thereon."
The Court opinion also states on the same page that complaints received against police officers from citizens "could be afforded continuing exemption under subsection (g) relating to preliminary correspondence with private individuals; however, that determination would be made upon consideration of the facts on a case-by-case basis. . . ." We think that one of the determining factors in a case-by-case decision is the substantiality of the complaint and whether the top administrator of the agency deemed formal action should be taken on the complaint.
Mr. Stallard states that it is his belief that he is at least entitled to inspect the complaint which initially spawned the investigation by the Internal Affairs Division and the record of final action taken. It is our opinion that you should consider that part of his request in the light of
City of Louisville v. Courier Journal, supra, and the pertinent parts of this opinion and make a further response to Mr. Stallard as to whether you will allow him access to the record of the initial complaint. You should, of course, allow him to inspect the record of final action taken by the Commissioner on the complaint if such exists.
A copy of this opinion is being sent to Mr. Stallard and he has the right to challenge it in court.