Request By:
Major Bob Stallins
Official Custodian of Records
Kentucky State Police
Information Services Branch
1250 Louisville Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Mr. James Lanter has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in your custody. He described the records in question as State Police documents pertaining to the investigations of Eugene Frank Tamme and William Tuck Buchanan.
Mr. Lanter in his letter to the State Police, dated May 15, 1986, maintained in part that the investigations and prosecutions relative to Tamme and Buchanan have been concluded and there are no pending charges or investigations concerning those two persons. He further alleged that all arrest, investigation and prosecution records are now a matter of public record and subject to public inspection upon request.
In your letter to Mr. Lanter, dated June 2, 1986, you advised him that the circuit court action relative to the subject matter of his request has been appealed. You therefore still consider the investigative case file to be active and you denied the request to inspect the records. In support of your decision you cited KRS 61.878(1)(f).
Mr. Lanter's letter of appeal to this office, dated June 13, 1986, but received June 27, 1986, and assigned July 2, 1986, maintains that while his request may have been properly denied as to Tamme, because his conviction is being appealed, his request as to Buchanan was improperly denied because that case has been concluded. He further maintains that portions of the records pertaining to both Buchanan and Tamme should have been made available as it was improper to impose a blanket denial on the documents in question. Mr. Lanter also states that the appeal of a conviction should not preclude the inspection of documents.
The undersigned Assistant Attorney General contacted you by telephone and made arrangements to personally inspect the documents in question. I examined the materials in your office on the morning of July 10, 1986. While I did not read every word on every page, I did examine the materials with sufficient throughness to determine the nature of those documents relevant to the Open Records Law.
There is one file (File No. 15-84-11222) and one investigation concerning Tamme and Buchanan and the double homicide for which they both were accused and subsequently found guilty. Tamme was found guilty of murder in the Washington Circuit Court and his conviction has been appealed. Buchanan plead guilty to complicity to commit murder. The one file consists of two volumes (approximately 449 pages) and the testimony and other documents cover incidents and events related to the murders with which Tamme and Buchanan were accused and found guilty and from which conviction Tamme has appealed.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order permitting inspection are those described 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 of rights granted by KRS 61.870 to 61.884."
In OAG 83-356, copy enclosed, this office dealt with KRS 61.878(1)(f) and the availability of records pertaining to a criminal case in circuit court which had been appealed. At pages 2-3 of that opinion we said in part as follows:
". . . Since an appeal has been taken of your brother's conviction in the circuit court, we do not believe that conviction is final or complete until it has been upheld by the last appellate court to which the conviction is taken. See Cornett v. Jud. Retirement and Removal Com'n, 625 S.W.2d 564 (1982). Cf. regarding a civil investigative matter on appeal discussed in OAG 83-41. This position is also consistent with the language found in KRS 17.150(2) regarding reports by law enforcement officers. Only when the prosecution is completed or no prosecution is going to be made would the documents covered by KRS 17.150 be accessible to the public if not still permissibly withheld pursuant to KRS 17.150(2)(a)-(d). If a criminal case is on appeal, the possibility exists of a remand for a new trial and for this reason the prosecution is not completed."
While it seems clear that documents relative to Tamme may be withheld since his conviction in circuit court has been appealed, the more difficult issue to resolve concerns documents pertaining to Buchanan.
KRS 61.878(3) provides, "If any public record contains material which is not excepted under this section, the public agency shall separate the excepted and make the non-excepted material available for examination." This office has cited this statute in several prior opinions and required public agencies to separate the exempted material from the nonexempted material.
In this particular situation, however, after reviewing the file in question, there is no practical or logical way to separate material relative to Buchanan which is not related to facts and events involving Tamme and the murders for which he was convicted and from which he is now appealing. The State Police has only one file which involves one investigation, the two murders for which both Tamme and Buchanan were accused. The testimony and documents in the one investigative file cover numerous incidents and events related to the murders for which both Tamme and Buchanan were charged. The material involving Buchanan is simply not severable from that pertaining to Tamme. It is all intertwined within the one investigation involving the double homicide with which Tamme and Buchanan were both charged.
Tis is therefore the poinion of the Attorney General that the State Police's denial of the request to inspect its one investigative file relative to a double homicide for which two persons were charged was proper as one of those charged is now appealing his conviction and material pertaining to the other is not severable from material pertaining to the appeal.
As required by statute, a copy of this opinion is being sent to the requesting party, James Lanter, who has the right to challenge it in circuit court pursuant to KRS 61.880(5).