Request By:
Christopher W. Johnson, Esq.
Legal Counsel
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
James M. Crawford, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect various photographs in the custody of the State Police.
In his letter to the State Police, a copy of which has not been made available to this office, Mr. Crawford evidently requested copies of photographs taken by the State Police concerning an automobile accident which occurred on March 11, 1988.
You replied to Mr. Crawford in a letter dated April 1, 1988. You denied his request and stated in part as follows:
You have requested copies of photographs regarding the accident of Christine Wagner and Lynn Long. That case is still considered active by this agency.
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 records you seek are part of an open case and therefore are exempt from inspection.
Mr. Crawford's letter of appeal was received by this office on April 7, 1988. He maintains that his office is in the process of investigating the accident and needs to examine the photographs taken by the State Police. He states that your position relative to the photographs is unreasonable.
The undersigned Assistant Attorney General talked with you by telephone on April 13, 1988, and you advised that the matter is still considered to be an open case and an uncompleted investigation by the Kentucky 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 for inspection so long as the case is active and 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 76-124; 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 the investigation has been concluded and a determination has been made not to prosecute the matter. See, for example, OAG 87-35 and OAG 87-10, copies of which are enclosed.
We again direct your attention to OAG 87-15 where we referred to an earlier opinion concerning KRS 17.150(2). The right of public inspection set forth is contingent upon the completion of the investigation and 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 investigation and litigation have been completed or until it has been decided not to litigate the matter, the documents in question will subsequently be subject to public inspection unless they are exempt from inspection under another statutorily recognized exception to inspection.
Before concluding we direct the attention of the appealing party to OAG 86-19, copy enclosed, at page four, where we said in part that, generally, a public record is either open to public inspection by any person or it may be withheld from all persons under one or more of the exceptions set forth in KRS 61.878(1)(a) through (j). This often means that the Open Records Act cannot be used in lieu of the discovery procedures provided by the Rules of Civil Procedure.
In conclusion, it is the opinion of the Attorney General that your denial of the request to inspect the photographs in question is justified at this time pursuant to KRS 61.878(1)(f) and (j) and KRS 17.150(2) as the investigation pertaining to the accident has not yet been completed and a determination has not yet been made as to whether legal action will be taken. Once the investigation and legal action have been completed or a decision has been made to take no legal action, the documents 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 mailed to the appealing party, James M. Crawford, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.