Request By:
Ms. Diane H. Smith
Official Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
By letter of December 11, 1990, Mr. John Spencer appealed to our Office your agency's denial of his request to inspect and obtain copies of various documents contained within Kentucky State Police case file no. 8-86-1499 concerning the shooting of Charles Sheperd. Mr. Spencer made this open records request by letter dated December 3, 1990, and received by the Kentucky State Police on December 6, 1990. You denied this request by letter dated December 7, 1990, relying upon the open records exemption of KRS 61.878(1)(j) and KRS 17.150(2). Your letter also provided a brief explanation that the records sought for inspection were contained in an active and open case of the Kentucky State Police Department. Mr. Spencer's letter of appeal was received by this Office on December 18, 1990.
The undersigned Assistant Attorney General talked with you by telephone on January 2, 1991. You explained that Mr. Spencer is presently incarcerated in New York serving sentences for New York judgments of conviction. You also explained that there is an active warrant of arrest issued by a Kentucky state court judge for Mr. Spencer based upon a criminal complaint for the alleged crime of assault first degree involving the shooting of Charles Sheperd. A detainer has apparently been filed with the correctional instiuttion in New York where Mr. Spencer is presently incarcerated. There has not yet been a trial in this case and therefore the Kentucky State Police consider the "Sheperd case file" active and open.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in 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 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)(j). This statute 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 or 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 part as follows:
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.
KRS 17.150(2). [Emphasis added.]
In numerous past opinions, this Office has stated that a Kentucky State Police case file is not open for inspection, while the investigation is ongoing. OAG 90-143. [Copy enclosed.] In the instant case, it is evident that prosecution has not been completed and therefore the records sought for inspection by Mr. Spencer may be and were properly excluded pursuant to KRS 61.878(1)(j) and KRS 17.150(2).
Once prosecution or legal action has 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 statutorally recognized exception to the right of public inspection. As required by statute, a copy of this opinion is being mailed to Mr. John Spencer, who has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882.