Request By:
Theresa L. Holmes, Esq.
Corporate Counsel
Lexington Fayette Urban County Government
200 East Main Street
Lexington, Kentucky 40507
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Thomas R. Emerson, Assistant Attorney General
Thomas W. Miller, Esq., has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect a document (a tape) in the custody of the Fayette County Detention Center.
In his letter to Mr. Ray Sabbatine of February 8, 1990, Mr. Miller, on behalf of his client, Kentucky Central Television, Inc., d/b/a WKYT-TV, requested of the jailer that he be permitted to inspect and copy a video tape recording of an arrestee, Mary Riggs, made February 3 or 4, 1990. Mr. Miller advanced in his letter several reasons why the tape was releasable at that time. He further maintained that KRS 61.878(1)(f) was not applicable as grounds for denying the release of the tape.
You replied, on behalf of Mr. Sabbatine, to Mr. Miller in a letter dated February 12, 1990. You stated that Ms. Riggs was charged with the crime of assault during the intake process and the tape is part of the investigative file prepared by the jailer, a peace officer, for use in the prosecution of Ms. Riggs. Thus, you cited KRS 17.150(2) as a basis for denying access to the tape until the criminal matter was concluded or until a decision not to prosecute was made.
You further stated that even after the criminal process is completed access to portions of the tape would be denied pursuant to KRS 17.150(2)(b) and KRS 61.878(1)(a) relative to personal privacy. Even though Ms. Riggs attempted to waive her privacy rights, the tape in question involves the bookings of other persons and their answers to various questions of a personal nature. Your letter concluded by advising that the portion of the tape involving only Ms. Riggs would be made available for inspection after the criminal proceedings involving her are concluded.
You advised the undersigned Assistant Attorney General in a telephone conversation on the morning of August 7, 1990 that all of the tape pertaining to the booking of Ms. Riggs was made available for inspection after the conclusion of the criminal proceedings in which she was involved. The portion of the tape involving the booking of other persons was not made available for public inspection.
In his letter of appeal to this office, dated February 19, 1990, Mr. Miller said in part as follows:
For purposes of your review, we wish to clarify that the scope of our request was limited to the portion of any recording made of Ms. Riggs and did not include any other matter recorded which may appear on the same videotape.
Mr. Miller maintained you relied exclusively upon KRS 17.150(2)(b) and it is not applicable as a bar to the inspection of the tape with which he is concerned. He further alleged that you set forth no facts to support your reliance upon KRS 17.150 and that the tape is discoverable by Ms. Riggs prior to going to trial.
This appeal was reassigned to the undersigned Assistant Attorney General on July 26, 1990, and I do not know what, if anything of substance, transpired between counsel of record and the person to whom the appeal was previously assigned. There are three letters in the file from Mr. Miller to this office, dated March 22, 1990, March 28, 1990, and April 3, 1990, the last of which refers to your letter of March 30, 1990 (which I do not have). Mr. Miller states in part that he disagrees with your assertions relative to the rights of privacy of other prisoners on the tape.
OPINION OF THE ATTORNEY GENERAL
Since Mr. Miller's letter of appeal of February 19, 1990 specifically states that his concern for purposes of review by this office is limited to the portion of the tape containing the recording of Ms. Riggs, this opinion will be confined to that issue. Any other matters relative to other persons on other portions of the tape will have to be raised in subsequent requests for inspection and appeals. The grounds for appeal cannot be expanded beyond those set forth in the letter of appeal or in some kind of amended letter of appeal.
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. (Emphasis added.)
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.
Numerous opinions of this office over the years, including OAG 88-27, OAG 87-66 and OAG 86-80, copies of which are enclosed, have concluded that investigative files, reports and other documents maintained by criminal justice agencies are not subject to public inspection until after the prosecution is completed or the investigation has been concluded and a determination has been made not to prosecute.
In your response to Mr. Miller's request you specifically cited KRS 17.150(2). The right of public inspection afforded by that provision is contingent upon the completion of the prosecution or a determination not to prosecute having been made. In addition, KRS 17.150(2)(d) authorizes the withholding of information which is to be used in a prospective law enforcement action. Your response also stated that the tape involving Ms. Riggs would be used in the prosecution of Ms. Riggs in connection with the assault charge filed against her and that the tape, as it related to her, would be made available after the completion of the criminal proceedings.
Mr. Miller maintains that the tape in question would be discoverable prior to Ms. Riggs' trial. Generally, under the Open Records Act, 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 statutory exceptions. This often means that the Open Records Act cannot be used in lieu of the discovery procedures set forth in the Rules of Procedure.
In conclusion, it is the opinion of the Attorney General that your denial of the request to inspect the tape of Ms. Riggs was justified on February 12, 1990, pursuant to KRS 61.878(1)(f) and (j) and KRS 17.150(2)(d), as the criminal proceedings against Ms. Riggs had not been completed at that time. Once the criminal proceedings were completed, the tape became subject to public inspection unless excluded by another statutorily recognized exception to public inspection.
A required by statute, a copy of the opinion is being mailed to the appealing party, Thomas W. Miller, Esq., who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.