Request By:
Ms. Diane H. Smith
Official Custodian of Records
Commonwealth of Kentucky
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
Robert J. Houlihan, Jr., and James L. Thomerson, attorneys with the law firm of Stoll, Keenon & Park, have appealed to the Attorney General pursuant to KRS 61.880, on behalf of The Lexington-Herald Company and its reporter, Mr. Frank Langfitt, your denial of Mr. Langfitt's open records request to inspect and copy various documents.
Mr. Langfitt tendered an open records request to the Kentucky State Police by letter dated July 23, 1991, requesting copies of certain documents involving three state police case files from Anderson County. You, in your capacity as official custodian of records for the Kentucky State Police, provided copies of all of the case files for two of the individuals, but denied inspection of the files involving one of the criminal defendants on the grounds that those files were still considered active.
Mr. Langfitt tendered a second open records request to the Kentucky State Police by letter dated August 6, 1991, in which he requested copies of various documents from files involving 39 criminal defendants. You denied this request pursuant to KRS 61.872(5) on the grounds that compliance would place an unreasonable burden on the Kentucky State Police and gave an explanation of why the request was unreasonably burdensome.
Mr. Langfitt submitted a third open records request by letter dated August 27, 1991, in which he modified his earlier August 6, 1991, request, and sought inspection of certain records involving state police case files of all different criminal defendants. The state police case files sought for inspection included the following:
A. Anderson County
1. Steve Taylor, case #'s 12-89-1605 through 1613 (9 case files);
2. William Ervin "Butch" Horsley, case #'s 12-90-1138 through 1140 (3 case files);
3. David Estes, case #'s 12-90-402 through 406 (5 case files);
4. Norman Scott Sharp, case # 12-90-1189 (1 case file) ;
B. Franklin County
1. Ray Casey, case # 12-87-0849 (1 case file) [case # improperly identified in the August 27, 1991, request];
C. Bullitt County
1. Audwin Wayne Wilson, case #'s 12-88-05388 and 12-88-0432 (2 case files);
2. Marlon Heath, case dated November 29, 1989, with no case #'s provided (unknown number of files involved);
3. Thomas Ray Gordon, Sr., case from 1988 with no case #'s provided (unknown number of files involved); and
4. Darrell Carrier, case from 1990 with no case #'s provided (unknown number of files involved).
For each of the case files involved, Mr. Langfitt requested copies of: any interviews with the accused defendant; any confessions made by the defendants; any polygraphs taken of the accused defendants; and investigating officer's case notes.
You responded to this open records request by letter dated August 30, 1991, denying the request in its entirety. In denying Mr. Langfitt's request for inspection or copies of the case files involving the four defendants whose cases were from Bullitt County you explained as follows:
A search for the records you seek from Bullitt County concerning Audwin Wayne Wilson, Marlon Heath, Thomas Ray Gordon, Sr., and Darrell Carrier cannot be found in our files. It is possible that the investigations of these individuals were conducted by the Bullitt County Sheriff's Office and you should request them from that agency.
With respect to Mr. Langfitt's request to review and copy the files of the criminal defendants involving cases from Franklin and Anderson Counties you stated in part as follows:
Please be advised that your request to review these records from Franklin and Anderson Counties has been denied because their release would be an invasion of personal privacy and because they involve juveniles.
The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to a particular provision. KRS 61.878(1)(a) excludes 'public records containing information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.'
KRS 61.878(1)(j) excludes 'public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly. ' Specifically, we refer to KRS 610.320(3) which states, 'All law enforcement records regarding children who have not reached their 18th birthday shall not be opened to scrutiny by the public.' Records of child abuse are exempt from inspection pursuant to KRS 620.050(4). Therefore, your request for these records is denied.
Mr. Langfitt made a fourth open records request by letter dated September 6, 1991, in which he renewed his request to inspect the case file of Ray Casey from Franklin County. You responded to this request by enclosing a copy of the Kentucky State Police case file concerning Ray Casey.
Counsel with the law firm of Stoll, Keenon & Park filed an appeal with this Office by letter dated September 13, 1991, and received in this Office on September 16, 1991, on behalf of The Lexington-Herald Company and its reporter, Mr. Frank Langfitt. This appeal, which presumably pertains to your August 30, 1991, denial, consists of 10 pages. It is unnecessary to summarize in detail the arguments in the appeal letter. Suffice it to say that the law firm of Stoll, Keenon & Park argues on behalf of the Lexington-Herald Company that you acted inconsistently with the open records law by denying inspection of the public records and that your reliance on KRS 61.878(1)(a) and (j), KRS 610.320(3), and KRS 620.050(4) is inconsistent with the provisions of the open records law and the Kentucky Unified Juvenile Code. The 10 page appeal letter does not mention your denial of Mr. Langfitt's request to inspect the case files from Bullitt County, which you explained could not be located, and for which you referred him to the Bullitt County Sheriff's Office.
Pursuant to KRS 61.880(2), the undersigned Assistant Attorney General requested additional documentation from the Kentucky State Police for substantiation. In a letter dated September 20, 1991, Lewis F. Mathias, Jr., attorney with the Kentucky State Police, explained in part as follows:
In reviewing Mr. Langfitt's request cases 12-89-1605 through 12-89-1613, 12-90-1138, [through 12-90-1140], 12-90-402, through 12-90-406, 12-90-1189, 12-87-[0849], and 12-87-[592] were located. Two cases, 12-89-1613 and 12-90-1189 are open investigations. All cases had tapes which had not been transcribed. No polygraph examination was conducted in these cases and no officers [sic] notes exist. The four Bullitt County cases were not located and apparently were conducted by some other agency.
The cases which were located, and closed investigations, had been initiated on the request of and in conjunction with [a] CHR Social Worker . . . Release was denied pursuant to KRS 61.878(1)(j) and KRS 620.050(4) (an investigation by Cabinets pursuant to KRS 620.030). . . . The privacy argument also was raised on behalf of the four children involved pursuant to KRS 61.878[(1)](a). The argument is based on the premise set forth in OAG 82-39, OAG 83-48, OAG 83-427, OAG [88]-4, and OAG 90-12.
OPINION OF THE ATTORNEY GENERAL
KRS 61.880(2) provides in part as follows:
If requested by the persons seeking inspection, the attorney general shall review the denial and issue . . . a written opinion to the agency concerned, stating whether the agency acted consistent[ly] with provisions of KRS 61.870 to 61.884. . . .
KRS 61.880(1) establishes some of the procedural requirements for a public agency when denying inspection and provides in part as follows:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall . . . notify in writing the person making the request, within the three (3) day period, of its decision. An agency response denying, in whole or in part, inspection of any record shall include a statement of the specific exception authorizing the withholding of the record and a brief explanation of how the exception applies to the record withheld. The response shall be issued by the official custodian or under his authority, and it shall constitute final agency action.
Your August 30, 1991, letter to Mr. Langfitt fully complied with the procedural requirements of KRS 61.880(1) and therefore you acted consistently with this procedural statutory provision. KRS 61.872(3) provides as follows:
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.
Your denial of inspection of the case files from Bullitt County involving 4 criminal defendants on the grounds that these case files could not be located and therefore were not available for inspection from the Kentucky State Police, was consistent with the open records law and fully complied with the provisions of KRS 61.872(3). You properly suggested to Mr. Langfitt that he contact the Bullitt County Sheriff's Office. This Office has repeatedly held that if records requested do not exist or are not presently in possession of the public agency, the open record request is moot. OAG 90-131; OAG 88-44; OAG 87-36; OAG 86-80; OAG 86-35; OAG 86-15; OAG 85-29; OAG 83-11. The ten page appeal letter did not expressly address your denial of these records and therefore presumably this appeal is not directed at your denial of the records which were not available for inspection.
Your initial denial of the one case file from Franklin County involving Ray Casey, case # 12-87-592, has become moot by the reversal of your position and the disclosure of this particular case file, following Mr. Langfitt's September 6, 1991, open records request. "[I]f access to the public records for which inspection or copying is sought, is initially denied and then subsequently granted, the issue of the propriety of the initial denial becomes moot. " OAG 91-140.
The remaining files involving the other four criminal defendants from Anderson County involve 18 case files. Of these 18 case files, Mr. Mathias, in his letter of September 20, 1991, confirmed that two of these cases are still open cases. Specifically, case # 12-89-1613 involving defendant Steve Taylor and case # 12-90-1189, the only file involving Norman Scott Sharp, are still open investigations. Although you are not required to rely upon every statutory exemption available in denying inspection of records, it is observed that these records would properly be exempt from inspection and copying pursuant to KRS 61.878(1)(j) and KRS 17.150. See OAG 91-131; OAG 91-12; OAG 88-63; OAG 82-388; OAG 81-379; OAG 79-582. As this Office has previously opined, "we are not bound to any procedure of considering only the reason given by the agency" in support of its decision to withhold records. OAG 82-169, p. 2. We therefore conclude that these two particular case files are exempt from inspection and copying pursuant to KRS 61.878(1)(j) and KRS 17.150.
Mr. Mathias noted in his September 20, 1991, letter to this Office that none of the cases for which Mr. Langfitt sought inspection contained polygraph examinations or officer notes. Therefore, the Kentucky State Police cannot provide inspection and copying of these public records which do not exist. Such a request is moot. See OAG's cited above which support this conclusion. Furthermore, it is not our duty to conduct an investigation to locate records which the public agency states do not exist. See OAG 91-138 and prior opinions cited therein.
We now address the issue of the remaining 16 case files from Anderson County which are closed files involving three different criminal defendants and which contain untranscribed tapes of interviews with the accused defendants. This Office opines that you acted consistent with the provisions of the open records law in denying inspection of these case files on the grounds of KRS 61.878(1)(j) and KRS 620.050(4). Therefore, this Office finds it unnecessary to address the issue of whether you improperly relied upon KRS 61.878(1)(a), which arguably may have permitted deletion of some of the information contained on the tapes. This Office also finds it unnecessary to address the propriety of your reliance upon the provisions of KRS 610.320(3). See
City of Louisville v. Courier-Journal, Ky.App., 637 S.W.2d 658, 659 (1982) (declining to address certain issues because inspection of records was properly denied pursuant to other provisions of the Open Records Law).
KRS Chapters 600 to 645 are known as the "Kentucky Unified Juvenile Code." KRS 600.010(1). The legislative purposes in enacting the Kentucky Unified Juvenile Code are set forth at KRS 600.010(2) and provide in part as follows:
It shall further be the policy of this Commonwealth to provide judicial procedures in which rights and interests of all parties, including the parents, are recognized. . . . Unless otherwise provided, such protections belong to the child individually and may not be waived by any other party.
KRS 600.010(2)(e).
The legislative purposes of enacting KRS Chapter 620 are further set forth at KRS 620.010 which provides in part as follows:
In addition to the purposes set forth in KRS 600.010, this chapter shall be interpreted to effectuate the following express legislative purposes regarding the treatment of dependent, neglected and abused children. Children have certain fundamental rights which must be protected and preserved,. . . .
KRS 620.030 sets forth the duty of any person "who knows or has reasonable cause to believe that a child is dependent, neglected or abused, . . ." to report the matter to and file a report with a local law enforcement agency, Kentucky State Police, the Cabinet for Human Resources or its designated representative, the Commonwealth's Attorney, or the County Attorney. KRS 620.030(2). (Emphasis added.)
KRS 620.040 establishes the duties of the Cabinet for Human Resources or its designated representative, the local law enforcement agency, the Kentucky State Police, the Commonwealth's Attorney, and the County Attorney upon a receipt of a report alleging abuse or neglect of a child. KRS 620.040(2) provides in part as follows:
If the cabinet or its designated representative receives a report of abuse by other than a parent, guardian, or other person exercising custodial control or supervision of a child, it shall forthwith notify the local law enforcement agency or Kentucky State Police and the Commonwealth's or county attorney of the receipt of the report and its contents and they shall investigate the matter. The cabinet or its designated representative may participate in an investigation of noncustodial abuse at the request of the local law enforcement agency or the Kentucky State Police.
KRS 620.050(3) provides in part as follows:
Upon receipt of a report of an abused, neglected or dependent child pursuant to this chapter, the cabinet as the designated agency or its delegated representative shall initiate a prompt investigation, take necessary action. . . . The cabinet shall work toward preventing further dependency, neglect or abuse of the child. . . .
With this review of portions of the KRS Chapter 620, this Office now addresses the specific exemption which is applicable to all of the closed (and open) case files sought for inspection by Mr. Langfitt, for which inspection was denied by you. The Kentucky State Police relied in part upon KRS 61.878(1)(j) in denying inspection. This provision provides 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;
* * *
[p]ublic records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the general assembly.
The specific statute or enactment of the General Assembly relied upon by the Kentucky State Police in your letter of denial was KRS 620.050(4) which provides as follows:
All information obtained by the cabinet or its delegated representative, as a result of an investigation made pursuant to this chapter, shall not be divulged to anyone except:
(a) Persons suspected of causing dependency, neglect or abuse, provided that in such cases names of informants shall be withheld unless ordered by the court;
(b) The custodial parent or legal guardian of the child alleged to be dependent, neglected or abused;
(c) Persons within the cabinet with a legitimate interest or responsibility related to the case;
(d) Other medical, psychological, educational, or social service agencies, corrections personnel or law enforcement agencies, including the county attorney's office, that have a legitimate interest in the case;
(e) A noncustodial parent when the dependency, neglect or abuse is substantiated; or
(f) Those persons so authorized by court order.
(Emphasis added.)
It is clear and apparently not disputed that Mr. Langfitt is not one of the persons entitled to inspect information obtained as a result of an investigation made pursuant to KRS Chapter 620, by the Cabinet or its "delegated representative," pursuant to KRS 620.050(4)(a)-(f). However, the law firm of Stoll, Keenon & Park, on behalf of The Lexington-Herald Company and its reporter Mr. Frank Langfitt, argues that this statutory exemption is not applicable in this case. In the appeal letter it is argued in part as follows:
KRS 620.050(4) similarly lends no support to the KSP since that statute protects information 'obtained by the cabinet [for human resources] .' Again, the records at issue are KSP records and not those of the cabinet. Additionally, while provisions of the Juvenile Code require persons knowing of children who are dependent, neglected or abused to report that fact to the cabinet and law enforcement agencies, no argument can be made that the KSP is acting as the cabinet's designated representative when it investigates possible criminal charges against an adult defendant. Thus, KRS 620.050(4) does not shield the requested records from public view.
This Office rejects the above argument under the facts existing in this particular appeal. As stated by Mr. Mathias in his September 20, 1991, letter, all of the closed cases which were located "had been initiated on the request of and in conjunction with [a] CHR Social Worker. . . ." Therefore, this Office concludes that under the facts presented in this appeal, KRS 620.050(4), is applicable to information obtained as a result of a joint investigation by the Cabinet for Human Resources and the Kentucky State Police. Such information as contained in Kentucky State Police records may not be divulged to anyone unless the person fits within the exemptions set forth at KRS 620.050(4)(a)-(f). Furthermore, any violation of the mandate of KRS 620.050(4) constitutes a violation of criminal law and is a Class B misdemeanor. KRS 620.990(1).
This Office emphasizes that the opinion in this appeal is not intended and shall not be construed to justify nondisclosure of all Kentucky State Police records involving juveniles by reliance upon KRS 61.878(1)(j) and KRS 620.050(4). Rather, it is the opinion of this Office that under the specific facts presented in this appeal, the Kentucky State Police and the Cabinet for Human Resources conducted a joint investigation and obtained its information jointly and therefore KRS 620.050(4) is applicable. It has already been well established in prior opinions of this Office that the Cabinet for Human Resources may deny inspection of their own records, under similar factual situations, by relying upon KRS 61.878(1)(j) and KRS 620.050(4). OAG 91-33; OAG 88-4; OAG 87-82. This Opinion merely confirms the statutory language of KRS 620.050(4) which specifies that information, which obviously includes information contained in records, shall not be divulged by anyone if obtained by the Cabinet for Human Resources, even if the information was obtained through a joint investigation with the Kentucky State Police.
The Lexington-Herald Company or its reporter Mr. Frank Langfitt may institute proceedings within thirty days for injunctive or declaratory relief in the circuit court of the district where the public records are maintained pursuant to KRS 61.880(5).