Request By:
Major Bobby Stallins
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Joseph L. Arnold, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect various documents. He describes the documents in question as the investigative files of the State Police concerning two fires in Carroll County, Kentucky, case numbers 5-83-081 and 5-84-142.
In your letter to Mr. Arnold, dated July 25, 1985, you advised him that his request to inspect the records in question was denied. You relied upon KRS 61.878(1)(f) which in part allows public records to be excluded from public inspection if "Records of law enforcement agencies . . . 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 premature release of information to be used in a prospective law enforcement action or administrative adjudication. . . ."
In a telephone conversation with the undersigned Assistant Attorney General on July 30, 1985 you stated that the files in question (State Police file numbers 5-83-081 and 5-84-142) are still considered active by the State Police. The matters in question are also being investigated by the Federal Alcohol, Tobacco and Firearms unit. Indictments will be sought when the matters are presented to a Federal Grand Jury within two to six weeks.
Mr. Arnold's letter to this Office states that he represents two tobacco warehouses in five civil suits. He must answer certain interrogatories propounded to the defendants, some of which relate to the cause of the fires and investigative procedures. He maintains the he cannot answer such questions without access to the information contained in the State Police files.
OPINION OF THE ATTORNEY GENERAL
Among the public records which are excluded from the application of the Open Records Act (KRS 61.870 to KRS 61.884) and subject to inspection only upon an order of a court of competent jurisdiction are those dealt with in KRS 61.878(1)(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 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. Provided, however, that the exemptions provided by this subsection shall not be used by the custodian of the records to delay or impede the exercise or rights granted by KRS 61.870 to 61.884."
In OAG 83-366, copy enclosed, we said that where the case file of the State Police was still considered to involve an active or pending case, the case file was not open to public inspection. Until prospective law enforcement action is complete or a decision is made to take no action, public access to that case file may be denied. KRS 61.878(1)(f) and KRS 17.150 (2) were cited in support of that determination. It was also noted in that opinion that even after the case files are closed certain documents may still be withheld from public inspection. See also OAG 83-123, copy enclosed, dealing with KRS 61.878(1)(f) and KRS 17.150(2)
In OAG 83-39, copy enclosed, we dealt with a request to inspect the case file of the State Police where the matter under consideration involved concurrent state and federal jurisdiction to prosecute for criminal activity. At page three of that opinion we said in part as follows:
"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 [by] KRS 61.878(1)(f) apply 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. . . ."
In conclusion, it is the opinion of the Attorney General that your denial of the request to inspect the investigative case files of the State Police (case numbers 5-83-081 and 5-84-142) was proper under the Open Records Act as the files pertain to matters which are still considered active and pending cases by state and/or federal authorities.
As required by statute a copy of this opinion is being sent to the requesting part who has the right to challenge it in circuit court pursuant to KRS 61.880(5).