Request By:
Christopher W. Johnson, Esq.
Legal Counsel
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: David L. Armstrong, Attorney General; Thomas R. Emerson, Assistant Attorney General
Tim Futrell, Esq. has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect certain records in the custody of the Kentucky State Police.
In his letter to the State Police of May 4, 1987, Mr. Futrell stated that he represents the co-administrators of the estate of Donald E. Robinson who was killed in a fire in Princeton, Kentucky, on April 19, 1987. Mr. Futrell made the following request to the State Police:
"It is my understanding that the arson unit of the Kentucky State Police has conducted an investigation pertaining to this fire. I am writing to request a copy of this report and any and all other information which you have available concerning the circumstances of this fire and its causation . . ."
You replied to Mr. Futrell in a letter dated May 11, 1987. You denied his request and cited in support of your decision KRS 61.878(1)(j) and KRS 17.150. You said that KRS 61.878(1)(j) exempts from public inspection those records made confidential by the enactment of another statute and KRS 17.150 exempts from public inspection the files of law enforcement agencies pertaining to cases which have not been closed. The case file in question has not yet been closed, and, in your opinion, is exempt from inspection.
The undersigned Assistant Attorney General talked briefly with you by telephone on May 29, 1987, and you advised that the case file actually consists of two investigations, an arson investigation and an investigation concerning the death of a person. Both of these investigations are still considered open and active cases by the State Police.
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 addition, KRS 61.878(1)(j) provides that, "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly" are excluded from the application of the Open Records Act and shall be subject to public inspection only upon an order of a court of competent jurisdiction. KRS 17.150(2) states in part that intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection providing prosecution is completed or a determination not to prosecute has been made. Also, KRS 17.150(2)(d) provides that such records may be withheld from inspection if the inspection would disclose information to be used in a prospective law enforcement action.
In OAG 87-15, copy enclosed, this office referred to an earlier opinion dealing 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 three of OAG 87-15 we quoted from the earlier opinion as follows:
". . . 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 87-10 and OAG 87-2, copies of which are enclosed.
We again direct your attention to OAG 87-15 where we referred to a prior opinion pertaining to the provisions of KRS 17.150(2). The right of public inspection set forth there is contingent upon the completion of the litigation or a determination having been made not to prosecute. In addition, KRS 17.150(2)(a) through (d) authorize the imposition of additional restrictions to public inspection under the appropriate circumstances.
While the exemptions from public inspection set forth in KRS 61.878(1)(f) and KRS 17.150(2) 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.
Therefore, in conclusion, 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 investigations pertaining to the death and the fire have not yet been completed and a determination has not yet been made as to whether legal action will be taken. See KRS 61.878(1)(f) and (j) and KRS 17.150(2). 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, Tim Futrell, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).