Request By:
Ms. Diane H. Smith
Custodian of Records
Kentucky State Police
919 Versailles Road
Frankfort, Kentucky 40601
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. John G. Skinner, Branch Manager of Custard Insurance Adjusters, has appealed to the Attorney General's Office pursuant to KRS 61.880 your denial of his request to inspect the investigative report of an accident involving Mr. David Bennett which occurred on November 3, 1990.
In response to Mr. Skinner's request to review the investigative file, you stated that the case is still considered active, and that the records contained therein are exempt under KRS 61.878(1)(j) and KRS 17.150(2). You confirmed that the case is still under investigation in a conversation with the undersigned which took place on March 20, 1991.
In his letter of appeal to this Office, Mr. Skinner states that his company has been unable to determine whether it should extend coverage because its representatives have been denied access to the file. He requests that we review the denial.
OPINION OF THE ATTORNEY GENERAL
This office has previously stated that case files in the possession of the State Police are not open to inspection while the case is active. OAG 87-15; OAG 88-27 (copies enclosed) . We see no reason to depart from that view today. It is therefore our opinion that your denial of Mr. Skinner's request was proper.
KRS 61.878(1)(f) exempts from public inspection:
Records of law enforcement agencies or agencies involved in administrative adjudication that were compiled 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.
Moreover, KRS 61.878(1)(j) authorizes the withholding of "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly." The Kentucky Revised Statutes provide for such nondisclosure of intelligence and investigative reports maintained by criminal justice agencies prior to the completion of the prosection or the decision not to prosecute at KRS 17.150(2). That same provision, at subsection (2)(d), exempts such records if inspection would disclose information to be used in a prospective law enforcement action.
As indicated, this Office has previously stated that State Police investigative files are not open to inspection while the case is pending. OAG 83-366. In that opinion, we advised:
[Active files] . . . are . . . 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 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)
See also OAG 85-93; OAG 86-59; OAG 86-81. Upon completion of the prosecution or after a decision not to prosecute is made, the file will be subject to public inspection unless the documents contained in it are exempt under another exception to the Open Records Act.
Mr. Skinner may inspect a copy of the accident report itself. This Office has repeatedly stated that such reports are public records because there is no provision in the Open Records Act exempting them. OAG 76-478; OAG 80-210; OAG 89-76 (copies enclosed) . Accordingly, a copy of the report, masking any exempted information such as social security numbers, should be made available to the requester.
We conclude that your denial of the request to inspect the records in question was proper inasmuch as the investigation of the accident was not complete and a determination had not yet been made as to whether legal action would be initiated. Once the investigation has been completed and the prosecution concluded, or a decision not to prosecute has been made, the records will be subject to inspection unless exempt under another recognized exception. A copy of the accident report should, however, be made available for inspection.
As required by statute, a copy of this opinion is being sent to the requesting party, Mr. John G. Skinner. Mr. Skinner or the State Police, may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).