Request By:
Major Bobby Stallins
Official Custodian of Records
Kentucky State Police
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Cicely D. Jaracz, Assistant Attorney General
Mr. Terry Jay Allen has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in your custody. Specifically, Mr. Allen's attorney, Mr. Harry P. Hellings, Jr., made a request to Trooper Larry Carey to inspect any information gained by Trooper Carey in his investigation in Commonwealth v. Terry Allen. Mr. Hellings also requested Trooper Carey to return several photographs in Carey's possession which Mr. Allen indicated were his personal property.
You granted Mr. Hellings' request in part and denied it in part. Specifically, your denial letter indicated that the Kentucky State Police initiated three different investigations against Mr. Allen on September 6, 1982. The file of the first investigation involving the charge of "wanton endangerment" was attached for inspection. The second investigation involved a "wanton endangerment" charge against a second victim. You attached the cover sheet indicating information on the victim for Mr. Hellings' inspection. However, the rest of that file was not attached as it was identical to the first file.
You denied inspection of the third investigative file which involved a charge of "terroristic threatening. " Your denial was based on KRS 61.878(1)(f), which exempts from public inspection those law enforcement agency records compiled in the process of detecting and investigating statutory 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. " Unless otherwise exempted, these records are open to public inspection once enforcement action is complete or a decision is made to take no action.
You made no mention of Mr. Allen's photographs which Mr. Hellings indicated were Mr. Allen's personal property and in the possession of Trooper Carey.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that your denial was proper under the Open Records law.
You indicated in your denial letter that "the third investigative file involving a charge of 'terroristic threatening' is still open and therefore will not be released." This third file was therefore properly exempted from public inspection under KRS 61.878(1)(f) which permits exemption (except upon court order):
"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. 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. . . ."
Therefore, although this file is currently exempt, it will be open to public inspection (subject to any other exemptions under KRS 61.870 et seq. ) once enforcement action is complete or a decision is made to take no action.
You made no response to Mr. Hellings' request on behalf of Mr. Allen for return of Mr. Allen's photographs in Trooper Carey's possession. These photographs are subject to the Open Records law as they fall under the definition of "public record" in KRS 61.870(2). The statutory obligation of the Attorney General under an Open Records appeal, however, is to review the propriety of denial of inspection. Therefore, we are unable to issue an opinion concerning whether the photographs should be returned to Mr. Allen. If the photographs are retained in the first two investigative files which you allowed Mr. Allen to inspect, then they are also open to inspection. They are not currently open to inspection, however, if retained in the third investigative file.
It is therefore the opinion of the Attorney General that your denial was proper under the Open Records law as KRS 61.878(1)(f) allows exemption from public inspection any law enforcement records in which enforcement action has not yet been completed.
As directed by statute, a copy of this opinion is being sent to the requestor, who may initiate further proceedings pursuant to KRS 61.880(5).