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
J. Quentin Wesley, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in your custody.
In his letter to you, a copy of which this office does not have, Mr. Wesley apparently requested that he be permitted to inspect and copy the state police investigative report concerning the loss by fire of the home of Ray and Sheree Taylor on May 2, 1986.
You replied to Mr. Wesley in a letter dated November 20, 1986. You denied his request and cited in support of your decision KRS 61.878(1)(f) which provides in part that public records may be excluded from public inspection when "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 his letter of appeal to this office Mr. Wesley states that his client, Mr. Taylor, is the person who contacted the State Police Arson Investigators and requested an investigation of the fire. His client's insurance carrier has denied the claim and he needs access to the report so that he can proceed accordingly. Mr. Wesley has requested that we review your denial and permit him to inspect and copy the report in question.
The undersigned Assistant Attorney General talked briefly by telephone with you on December 8, 1986, and you advised that the fire at the Taylor's home in May of 1986 is still considered by the State Police to be an active and open investigation.
OPINION OF THE ATTORNEY GENERAL
Among the public records which may be excluded from public inspection in the absence of a court order authorizing 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 83-366, copy enclosed, this office dealt with a request to examine a case file in the possession of the State Police. We concluded in part that such a case file is not open as long as the case is pending. At page two of the 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 86-77, OAG 86-47 and OAG 85-93, copies of which are enclosed.
While the exemption from public inspection set forth in KRS 61.878(1)(f) will apply until the litigation has been completed or until it has been decided not to litigate the matter, the documents in question would be subject to public inspection upon completion of the litigation or the making of the decision not to litigate, unless the documents may be exempted from inspection pursuant to another statutorily recognized exception to inspection. Thus it is always possible that even after litigation has been completed or a decision not to prosecute has been made that some portion of the material in question will still not be available for public inspection.
KRS 61.884 provides that, "Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878." KRS 61.878, of course, in part sets forth those documents which a public agency may exclude from public inspection in the absence of a court order authorizing inspection.
A person, therefore, is entitled to inspect a document in which he is mentioned unless that document is exempt from inspection under KRS 61.878 of the Open Records Act. The right to inspect public records under KRS 61.884 would not apply if the records consist of the materials set forth in KRS 61.878 (1)(f). Those materials are exempt from public inspection even by a person who is mentioned in them. See OAG 86-26 and OAG 84-249, copies of which are enclosed.
Thus, it is the opinion of the Attorney General that your denial of the request to inspect the records in question was proper at this time as the investigation of the fire has not yet been completed and a determination has not yet been made as to whether legal action will be taken. Once the investigation has been completed and legal action has been completed or a decision has been made to take no legal action, the documents in question will be subject to public inspection unless exempted by another statutorily recognized exception to public inspection.
As required by statute, a copy of this opinion is being sent to the requesting party, J. Quentin Wesley, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).