Request By:
Captain Larry Fentress
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
As attorney for Lonnie Adkins, Stephen W. Cessna has appealed to this Office pursuant to KRS 61.880 your denial of his request for a copy of the "Internal Affairs file relating to the recent indictment of . . . [Mr. Adkins]." In his letter of appeal, Mr. Cessna indicates that he represents Mr. Adkins, a former state trooper, in a criminal action now pending in the Knox Circuit Court. He explains that the facts contained in the file formed the basis for his client's indictment.
You denied Mr. Cessna's request in a letter dated June 10, 1991, relying on KRS 61.878(1)(j), which exempts from mandatory disclosure "public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly. " It is your position that KRS 17.150(2) mandates nondisclosure of investigative reports until prosecution is completed or a decision not to prosecute is made. Elaborating on how the cited exemption applies to Mr. Cessna's request, you state that "the report to which . . . [he] seek[s] access is investigative in nature and relates to a prosecution which has not been completed."
In a conversation with the undersigned on July 15, 1991, you explained that Mr. Adkins resigned from the force before the investigation was concluded.
Mr. Cessna asserts his client's right to the file under RCr 7.24, which requires the Commonwealth to provide a defendant in a criminal proceeding with "all discoverable information." He argues that in denying his request for a copy of the file, the Kentucky State Police have "circumvented the spirit and intent of the Rules of Criminal Procedure as it [sic] relates to discovery. " Mr. Cessna asks that this office review your denial of his request for a copy of the Internal Affairs file to determine if this decision was consistent with the Open Records Act. For the reasons set forth below, we conclude that you properly denied Mr. Cessna's request.
OPINION OF THE ATTORNEY GENERAL
Pursuant to KRS 61.880(2), the Attorney General is charged with the duty of reviewing denials of requests to inspect public records to determine if the agencies which issued the denials "acted consistent with the provisions of KRS 61.870 to 61.884." It is not the Attorney General's duty to rule on whether those records are discoverable in a pending criminal action. Indeed, this Office has repeatedly held that the Open Records Act should not be used as a substitute for discovery procedures. OAG 82-280; OAG 83-356; OAG 89-53; OAG 91-91. We affirm that position today. While Mr. Cessna may be correct in asserting that many, if not all of the records, he requests are discoverable under RCr 7.24, we are limited in our review to determining whether the Kentucky State Police properly denied his request under the Open Records Act.
Among the records which may be excluded from public inspection in the absence of a court order are those described in KRS 61.878(1)(f):
Records of law enforcement agencies or agencies involved in administrative adjudication that were complied 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.
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. The General Assembly has authorized nondisclosure of records such as those at issue in this appeal by enactment of KRS 17.150(2), which states that intelligence and investigative reports maintained by criminal justice agencies are subject to public inspection only after prosecution is completed or a determination not to prosecute is made. Moreover, 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.
In OAG 83-366, this Office dealt with a request to examine an investigative file in the possession of the State Police. We concluded that such a file is not open to inspection as long as the case is pending. At page two of the opinion, we observed:
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 to 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 76-124; KRS 17.150(2).
This position is consistent with a number of opinions issued by this Office holding that investigative files and reports maintained by criminal justice agencies are not subject to inspection until after prosecution is completed or a determination not to prosecute is made. OAG 82-280; OAG 83-356; OAG 83-481; OAG 85-93; OAG 86-59; OAG 86-81; OAG 87-15; OAG 88-27; OAG 90-143; OAG 91-91.
Although the exceptions to the Open Records Act set forth in in KRS 61.878(1)(f) and KRS 17.150(2) preclude inspection of investigative files maintained by criminal justice agencies until the prosecution of the action to which they give rise is concluded or a decision not to prosecute is made, the files would be subject to inspection when the action is brought to a close. However, the files remain exempt if they fall within the parameters of another statutorily recognized exception. While we need not decide the issue in the present appeal, the State Police having not invoked the relevant exceptions, the investigative files requested by Mr. Cessna are characterized as Internal Affairs files. As such they are exempt from public inspection as preliminary memoranda pursuant to KRS 61.878(1)(g) and (h).
City of Louisville v. Courier-Journal and Louisville Times Company, Ky.App., 637 S.W.2d 658 (1982); OAG 80-43; OAG 82-630; OAG 83-366. Only those portions of the Internal Affairs files which indicate any final action taken, and the complaint which spawned the investigation, are open to public inspection. OAG 82-547; OAG 83-366.
It is therefore the opinion of this Office that your denial of the case file pertaining to Mr. Cessna's client was proper under the Open Records Act. Reports and documents involving a criminal prosecution are subject to discovery by the accused pursuant to the Kentucky Criminal Rules of Procedure, and will be available under the Open Records Act, if at all, only after the prosecution of Mr. Adkins is concluded.
As required by statute, a copy of this opinion will be sent to the requester, Stephen W. Cessna, who may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).