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; V. Lynne Schroering, Assistant Attorney General
Mr. James L. Thomerson, attorney for the Lexington Herald-Leader Company, has appealed to the Attorney General pursuant to KRS 61.880 your denial of inspection of certain public records in your custody. The request involves records relating to the investigation of the disappearance of Susan Smith of Freeburn, Kentucky. The records are described as "the statement made by Mark Putnam to State Police Detective Richard Ray and Lieutenant Paul Maynard on May 16, 1990 when they interviewed him in Florida" and "a copy of all confessions by Putnam."
By letter dated July 16, 1990 you denied inspection of the above-referenced statement and confessions relying on the open records exclusion KRS 61.878(1)(f). This exclusion exempts from open record inspection the records of law enforcement agencies "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. "
You explain in your letter to the Lexington Herald-Leader that the statement made by Mark Putnam as well as his confession will be utilized in a prospective law enforcement action or administrative adjudication by the Federal Bureau of Investigation.
The Lexington Herald-Leader argues that the State Police reliance on the law enforcement exemption, KRS 61.878(1)(f), is misplaced. The newspaper contends that the statute should be read narrowly and only exempt public records that could harm "the agency." Thus, the disclosure would not harm the State Police but arguably only the FBI.
OPINION OF THE ATTORNEY GENERAL
It is the opinion of the Attorney General that you acted in accordance with the Open Records Law, KRS 61.870 to 61.884, in denying inspection of the statement and confessions. The portion of the statute relied upon by your office is KRS 61.878(1)(f) which reads as follows:
The following public records are excluded from the application of KRS 61.870 to 61.884 and shall be subject to inspection only upon order of a court of competent jurisdiction:
* * *
(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;
Our office rendered an opinion on a similar issue in OAG 83-39 wherein we opined that:
The fact that state authorities have decided not to prosecute does not mean that their investigative records must now be made available for public inspection if the joint investigation is still open and there is the possibility of federal prosecution. Since the premature release of the state's investigative file at this time might interfere with the prosecution by the federal authorities we believe that the exceptions provided KRS 61.878(1)(f) applies [sic] and that you acted properly in denying inspection of the records.
The State Police have been asked by the FBI to withhold the documents in question pending completion of the FBI's investigation. We believe the State Police acted in accordance with the open records law in denying inspection of these documents.
A copy of this opinion is being sent to Mr. Thomerson and he has the right to challenge the opinion in court as provided by KRS 61.880(5).