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
Richard Clay, Esq. has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect and copy certain records in your custody. He has described the records in question as the State Police investigative file concerning Gerald Wilcher of Danville, Kentucky. He also complains of the alleged refusal of the State Police to return various items recovered from Mr. Wilcher.
In your letter to Mr. Clay, dated August 25, 1986, you advised him that the investigative file in question is still considered active by the State Police. You, therefore, denied his request to inspect and copy the file, citing KRS 61.878(1)(f) in support of your decision. You further advised the undersigned Assistant Attorney General during the course of a telephone conversation on September 10, 1986, that the matter continues to be part of an active and ongoing investigation.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from the application of the Open Records Act (KRS 61.870 to KRS 61.884) in the absence of an order of a court of competent jurisdiction authorizing inspection 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 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 may be excluded from public inspection until after the litigation pertaining to those files and reports has been completed or a determination not to prosecute has been made. See, for example, OAG 85-93, OAG 85-118 and OAG 86-47, copies of which are enclosed.
A substantial portion of Mr. Clay's letter of appeal pertains to the return of items to his client, Gerald Wilcher, by the State Police. Such matters are outside the scope of an opinion issued under the Open Records Act and thus will not be dealt with in this particular opinion. As we said in OAG 84-178, copy enclosed, at page three:
". . . 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. . . ."
In conclusion it is the opinion of the Attorney General that your denial of the request to inspect and copy an investigative file of the State Police relative to a particular person was proper under KRS 61.878(4)(f) of the Open Records Act as the matter in question pertains to an active case (a matter under investigation or in litigation).
As required by statute a copy of this opinion is being sent to the requesting party, Richard Clay, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).