Request By:
Ms. Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, KY 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; D. Brent Irvin, Assistant Attorney General
By letter of November 7, 1990, Mr. Randall Scott May has appealed to our office your agency's denial of his request to inspect death investigative reports in the custody of the Kentucky State Police concerning the death of Manford Newsome.
FINDINGS IN BRIEF
The Kentucky State Police acted consistent with the Open Records Act and KRS 17.150(2), when it denied a request to inspect death investigative reports in its custody which were part of an active, ongoing investigation, notwithstanding that the investigation was almost one and one-half years old at the time of the request.
FACTUAL BACKGROUND
By letter of October 25, 1990, Mr. Randall Scott May, a Hazard attorney, made an open records request of the Kentucky State Police to inspect "any and all investigative reports or documentation with regard to the Manford Newsome death case occurring on May 29, 1989, at Dorton, Pike County, Kentucky." Mr. May represents defendants in a civil action styled Manford Newsome, Administrator of the Estate of Manford J. Newsome, Deceased, and Jeffrey Wright v. Kentucky Power Company and AEPSC . He stated that it was his "understanding that marijuana and cocaine was detected."
You responded to Mr. May's request, on behalf of the State Police, by letter of October 26, 1990 and denied the request on the grounds that the Manford Newsome case is still considered active by the State Police. You stated in relevant part:
Please be advised that this case is still considered active by this agency.
The Kentucky Open Records Act provides that all public documents are 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. May responded to your denial by his letter of October 29, 1990. He stated in relevant part:
I believe the relevant statutory provisions are KRS 61.878 (f)(j) and KRS 17.150(2) and (3).
This accident occurred almost 1 1/2 years ago and pursuant to the above statutory provisions I would respectfully request with more specificity as to why my request is being denied. In particular, is there going to be prosecution in this case or has a determination been made not to prosecute? Moreover, has enforcement action been completed and if not, why has this case not been closed?
If there is any part of the record which contains material which is not excepted, would you please make it available for examination.
By letter of October 30, 1990, you replied and once again denied Mr. May access to the Manford Newsome file. You stated in part:
As I told you in my initial letter, the Pikeville Post has informed me that this is an active, on-going investigation and is, therefore, exempt from public inspection by KRS 17.150(2). Additionally, there is no material in this file that is not excepted by statute.
Mr. May's letter of appeal was received by this office on November 8, 1990. He apparently desires to examine the Manford Newsome file in the course of defending his clients in a wrongful death case filed by the Administrator of the Manford J. Newsome estate. He states that he does not feel enough information is being provided to rightfully deny his request in accordance with KRS 61.878(1)(f) and (j) and KRS 17.150(2) and (3).
The undersigned Assistant Attorney General talked with you by telephone on November 19, 1990, and you advised us that the matter is still considered to be under active investigation by the Pikeville Post of the Kentucky State Police. No information was available as to when the investigation might be completed, or if the State Police had identified any suspects concerning the matter.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in relevant part for the Attorney General to review, upon request, a denial of a request to inspect public records, and issue a written opinion stating whether an agency "acted consistent with the provisions of KRS 61.870 to 61.884."
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) and (j). The first of these exemptions excludes from public inspection:
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.
The latter exemption, KRS 61.878(1)(j), exempts from public inspection:
Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly.
Among the "public records or information the disclosure of which is prohibited restricted or otherwise made confidential by enactment of the general assembly" are reports by law enforcement officers and criminal justice agencies described and codified at KRS 17.150. That statute, upon which you relied, provides in relevant part:
(2) 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 . (Emphasis added). However, portions of such records may be withheld from inspection if such inspection would disclose:
(a) The name or identity of any confidential informant or information which may lead to the identity of any confidential informant;
(b) Information of a personal nature, the disclosure of which will not tend to advance a wholesome public interest or a legitimate private interest;
(c) Information which may endanger the life or physical safety of law enforcement personnel; or
(d) Information contained in such records to be used in a prospective law enforcement action.
(3) When a demand for the inspection of such records is refused by the custodian of the record, the burden shall be upon the custodian to justify the refusal of inspection with specificity. Exemptions provided by this section shall not be used by the custodian of the records to delay or impede the exercise of rights granted by this section.
In numerous past opinions, this office has stated that a State Police case file is not open for inspection, while the investigation is ongoing.
In OAGs 88-27, 87-66 and 87-15, copies of which are enclosed, quoting from earlier opinions, 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 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 the investigation has been concluded and a determination has been made not to prosecute the matter. See, for example, OAGs 87-15 and 87-35, copies of which are also enclosed.
Mr. May contends that not "enough information is being provided to rightfully [deny his] request in accordance with KRS 61.878 (f)(j) and KRS 17.150 (2) and (3)." We disagree. While it is true that KRS 17.150 (3) requires that when a demand for inspection of investigative reports is refused by the custodian of the record, the burden is upon the custodian to justify the refusal of inspection with specificity, this has been done in the present case. You indicated your agency's reliance on KRS 61.878 (1)(j) and KRS 17.150 (2) and further indicated that the records sought are part of an open case. This specified the statutes relied upon and sufficiently explained that the case is still under active investigation.
As we said in OAGs 87-15, 88-27 and 87-66, the right of public inspection set forth in KRS 17.150 (2) is contingent upon the completion of the investigation and litigation or a determination having been made not to prosecute.
It is within the sound discretion of the law enforcement agency to decide when a case is active, merely inactive, or finally closed. See OAG 83-123, a copy of which is enclosed. While we can understand Mr. May's desire to inspect this file, as part of his pretrial discovery, and his impatience with the length of time this case has been under investigation, we are not prepared to say that one and one-half years is an unreasonable time to investigate a case. These facts can be distinguished from the facts of OAG 86-80, a copy of which is enclosed, where a missing person's file had been maintained as an open case almost eight years. After that length of time we said the agency should either make the file available or set forth some other statutorily recognized exception. We are not prepared to reach such a result where the investigation has been ongoing for one and one-half years.
In conclusion, it is the opinion of the Attorney General that your agency's denial of Mr. May's request to inspect the Manford J. Newsome file is justified at this time as the investigation pertaining to Newsome's death has 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 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 the right of public inspection.
As required by statute, a copy of this opinion is being mailed to Mr. Randall Scott May, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880 95) and KRS 61.882.