Request By:
Ms. Diane Smith
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
Counsel for the Lexington Herald-Leader appeals the decision of the Kentucky State Police to deny access to certain public records. The Lexington Herald-Leader requested access to the transcripts of interviews referred to but not attached to the final report in the Mark Putnam/Susan Smith case. The State Police denied access to the records on the grounds that these records were actually the property of the Federal Bureau of Investigation. You explained that the records were marked with this FBI disclaimer:
This document contains neither recommendations nor conclusions of the FBI. It is the property of the FBI and is loaned to your agency; it and its contents are not to be distributed outside your agency.
The Herald-Leader argues that the requested records have been used by and are within the possession of the State Police; therefore, these are public records subject to the provisions of the Act. Secondly, the Herald-Leader contends that holding that the FBI merely "loaned" the documents to the State Police violates the letter and spirit of the Kentucky Open Records Act. Lastly, the Herald-Leader argues that the FBI disclaimer is "meaningless" under the Act.
OPINION OF THE ATTORNEY GENERAL
You were correct in denying the Herald-Leader access to the transcripts of interviews provided to the State Police with the FBI disclaimer. The documents in question belong to the FBI and were utilized by the State Police in a joint investigation regarding the Mark Putnam/Susan Smith case.
The issue involved herein was addressed by the Eleventh Circuit Court of Appeals in United States v. Napper, 887 F.2d 1528 (11th Cir. 1989). In Napper the FBI assisted the Atlanta Police Department in its investigation of the Atlanta child murder cases. During the investigation the FBI provided the city police department with documents and the majority of the documents were marked with the FBI disclaimer (the same disclaimer involved in the Putnam/Smith case). Several of the FBI documents were released to local media and the FBI sued to regain possession of the disputed documents.
The Eleventh Circuit upheld the decision of the Atlanta Division of the United States District Court which held that the documents were the property of the FBI, regardless of whether they are marked with nondisclosure provisions. United States v. Napper, 694 F.Supp. 897 (N.D. Ga. 1988). The district court explained that the documents were loaned pursuant to 28 U.S.C. Section 534(b). Section 534 states that government exchanges of criminal records with state and local governmental organizations are subject to cancellation if they are disseminated without authority.
The undersigned Assistant Attorney General has been in contact with the Federal Bureau of Investigation and the Bureau steadfastly maintains that the Putnam/Smith interview transcripts are FBI property and should not be released.
The Kentucky Open Records Act in KRS 61.878(1)(i) exempts from disclosure "[a]ll public records or information the disclosure of which is prohibited by federal law or regulation." The interview transcripts are exempted from disclosure by this exception.
In conclusion, since these interview transcripts are the property of the FBI and as this federal government agency requests that the documents not be disseminated, we believe that the State Police were correct in denying release of these documents.
Pursuant to KRS 61.880(5), a copy of this opinion will be sent to the requesting party, James Thomerson. Both you and Mr. Thomerson have the right to challenge this opinion in circuit court pursuant to KRS 61.880(5).