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
Although the letter was initially directed to your office, Mr. Douglas C. Ruschman has apparently appealed to the Attorney General pursuant to KRS 61.880 your denial of a request by an employee of his company to inspect certain records in the custody of the Kentucky State Police. In any event, we are treating Mr. Ruschman's letter of September 8, 1987, addressed to you, which we received on September 17, 1987, as an appeal under the Kentucky Open Records Act.
In a letter to you dated August 17, 1987, Mr. James L. Begley requested copies of death investigation reports concerning Roy Gilbert, Jr. and Harold David Howington.
You replied to Mr. Begley in a letter dated August 21, 1987. You denied his request and advised him that both cases are still considered active by the State Police. In addition, you said in part as follows:
"The Kentucky Open Records Act provides that all public documents are to be available for inspection unless exempt pursuant to a particular provision. KRS 61.878(1)(j) exempts records made confidential by separate statute. KRS 17.150(2) exempts law enforcement files or cases which have not been closed. The cases you seek are open and therefore exempt from inspection. "
Mr. Ruschman's letter to you of September 8, 1987, is being treated as an appeal of your decision. You wrote a letter to Mr. Ruschman, dated September 15, 1987, in which you advised him that his letter of September 8, 1987, was being forwarded to this office. You further stated that both of the case reports in question were still considered to be active cases by the State Police.
This office received Mr. Ruschman's letter to you and a copy of your letter to him, dated September 15, 1987, on September 17, 1987. The undersigned Assistant Attorney General attempted to contact you by telephone on September 22, 1987, and in your absence I talked with a legal secretary in your office who advised that the two investigative case reports in question are still considered to be open and active cases.
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 informations 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 decisions 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 87-35, 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 exceptions to 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.
Thus, 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 deaths 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 investigations have 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 excluded by another statutorily recognized exception to public inspection.
As required by statute a copy of this opinion is being sent to the appealing party, Mr. Douglas C. Ruschman, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).