Request By:
John D. O'Cull, D.M.D.
Lewis County Coroner
HC 73, Box 528
Vanceburg, Kentucky 41179
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
As attorney for Mr. Michael Pollitt, Mr. Wm. Kirk Hoskins has appealed to the Attorney General pursuant to KRS 61.880 your partial denial of his request to inspect certain records he believes to be in your possession. Those records are identified as the taped interviews you conducted with his client in the period following his wife's death, and the "Coroner's Report" filed in conjunction with your investigation of this matter.
You denied that portion of Mr. Hoskins' request pertaining to the "Coroner's Report" in a letter dated August 1, 1991, relying on KRS 61.878(1)(g) and (h). You did, however, release to Mr. Hoskins a copy of the autopsy report, including the Coroner's authorization for autopsy, a three page toxicology report, and a picture of the apparent scene of Mrs. Pollitt's death. You indicated that all remaining documents in your investigative file were exempt as preliminary notes and memoranda and private correspondence.
In a conversation with the undersigned on August 19, 1991, you explained that you spoke with Mr. Pollitt on three occasions following his wife's death. The first of these conversations took place minutes after you were called to the scene of her drowning. This brief interview was not recorded. The second interview was conducted that same evening, this time in the presence of a state police detective. Mr. Pollitt was advised of his rights and the conversation was recorded. Some two weeks later, you again interviewed Mr. Pollitt. He was apprised of his rights by the state police detective who accompanied you, and the conversation was recorded. These tapes are in the possession of the Kentucky State Police.
You further explained that the only "report" generated in the course of your investigation was the autopsy report, which you released to Mr. Hoskins. Although a Certificate of Death has been filed with the Bureau of Vital Statistics, it contains a "pending investigation" notation, and is, to that extent, nonfinal. No inquest was conducted, and no verdict filed with the circuit court clerk.
In his letter of appeal to this Office, Mr. Hoskins expresses the belief that "none of the exceptions to the Open Records Act justify the non-production of one's own statement." With respect to the "Coroner's Report," he argues that since a certificate of death has been submitted to the Bureau of Vital Statistics, the report must be complete and is therefore no longer preliminary. He asks that we review your partial denial of his request to determine if your actions were consistent with the Open Records Act. For the reasons outlined below, we conclude that you properly denied Mr. Hoskins' request.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.872(3), which sets forth procedures for handling misdirected open records request. That statute provides:
If the person to whom the application is directed does not have custody or control of the public record requested, such person shall so notify the applicant and shall furnish the name and location of the custodian of the public record, if such facts are known to him.
In your August 1 letter of denial, you failed to advise Mr. Hoskins that the taped interviews which were conducted with his client are in the possession of the Kentucky State Police. Under KRS 61.872(3), the Coroner's office has the burden of notifying a requester when his request has been directed to the wrong party, and advising him to whom the request should be directed. To the extent that you failed to do so, your response was technically deficient. However, because the tapes are not in your possession, we do not address the question whether they may properly be withheld.
With respect to Mr. Hoskins' request to inspect the "Coroner's Report," we find that your actions were consistent with the Open Records Act. Although you relied on KRS 61.878(1)(g) and (h) to authorize nondisclosure of certain documents in your investigative files, we are not bound by the exemption cited in determining whether you properly withheld those documents. OAG 82-450. This Office has previously recognized that a Coroner's autopsy report is exempt from the requirement of mandatory public disclosure by operation of KRS 61.878(1)(f). OAG 82-458; OAG 83-223; OAG 91-6. Like the prosecuting authority, the coroner may keep intelligence and investigative reports confidential until such time as the prosecution is completed or a determination not to prosecute has been made. This is in contrast to the Coroner's verdict, filed with the circuit court clerk at the close of a Coroner's inquest. Once filed, the verdict is a public record and may be examined by the public.
No inquest has been conducted in this matter, and there is, therefore, no verdict available for inspection by the public. All remaining documents in your investigative file could properly have been withheld. You elected, however, to release the autopsy report in an effort to assist Mr. Hoskins in the defense of his client. Since the exceptions to the Open Records Act are permissive rather than mandatory, this decision was consistent with the Act. OAG 80-519; OAG 84-163.
We find that you erred in failing to advise Mr. Hoskins that the taped interviews with his client are in the possession of the Kentucky State Police. Although, the Coroner's autopsy report is not an open record under KRS 61.878(1)(f), you demonstrated your willingness to cooperate with Mr. Hoskins by voluntarily releasing portions of the report. Therefore, your actions were, in all material respects, consistent with the Open Records Act.
As required by statute, a copy of this opinion will be sent to Mr. Wm. Kirk Hoskins. He has the right to challenge it in the appropriate circuit court pursuant to KRS 61.880(5).