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
Mr. R. L. Shields has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain public records in your custody. He describes the records in question as a copy of the investigative file concerning an explosion which occurred on the property being rented by State Trooper Allan Raisor at Waterford, Kentucky.
In your letter to Mr. Shields, dated May 28, 1985, you advised him that the investigation of the explosion is still considered an active case by the State Police. You, therefore, denied the request to inspect, citing KRS 61.878(1)(f) in support of your decision. You further advised the undersigned during the course of a telephone conversation on June 11, 1985 that the matter was still under investigation.
Opinion of the Attorney General
Among those public records which are excluded from the application of KRS 61.870 to KRS 61.884 (Open Records Act) and subject to inspection only upon an order of a court of competent jurisdiction are those dealt with by 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 of rights granted by KRS 61.870 to 61.884."
In OAG 83-366, copy enclosed, we dealt with a request to inspect a case file in the possession of the State Police. We concluded in part that case files are not open as long as the case is pending. At page two of that opinion we said:
". . . Since you indicate that these are still active files, they are therefore not open to public inspection until prospective law enforcement action or administrative adjudication is complete or a decision is made to take no action. KRS 61.878(1)(f) provides that records exempted under this section are open after the decision to act or not to act is made. However, even after the case files are closed, certain documents may still be withheld from public inspection. These include information which will reveal a confidential informant, information of a personal nature, and information which may endanger the life of a police officer. OAG 76-424; KRS 17.150(2)."
Numerous other opinions of this Office have concluded that investigative files and reports maintained by criminal justice agencies are not subject to public inspection until after prosecution is completed or a determination not to prosecute has been made. See, for example, OAG 83-111, OAG 84-178 and OAG 83-123, copies of which are enclosed.
In conclusion, it is the opinion of the Attorney General that your denial of the request to inspect the investigative case file of the State Police relative to the explosion in question was proper under the Open Records Act [KRS 61.878(1)(f)] as the investigation is still pending, the file pertains to an active case and a determination has not been made as to whether or not legal or administrative action will be taken.
As required by statute, a copy of this opinion is being sent to the requesting party who has the right to challenge it in circuit court pursuant to KRS 61.880(5).