Request By:
Mr. Kevin P. Sinnette
Assistant Corporation Counsel
Ashland Legal Department
P.O. Box 1839
Ashland, Kentucky 41105-1839
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. James Lindsey Castle has appealed to the Attorney General pursuant to KRS 61.880 your denial of his March 14, 1991, request for access to tape recordings made on June 3 or 4 which pertain to his arrest. Although Mr. Castle's request does not indicate their precise nature, you have advised us that the tapes consist of recordings of 911 telephone calls seeking police assistance, and statements made by Mr. Castle to the police subsequent to his arrest.
In a letter dated April 2, 1991, you denied Mr. Castle's request. You did not cite an exemption authorizing nondisclosure of the records, as required by KRS 61.880(1), but indicated that you viewed the request as an attempt to defeat the discovery provisions of the Kentucky Rules of Criminal Procedure. You directed Mr. Castle to petition the court for access to the relevant records.
In his letter of appeal to this Office, Mr. Castle states that he "is now preparing a pro se Post-Conviction Motion to be submitted to the Boyd Circuit Court," and that the requested record will be used as an aid in preparing his motion. He asks that we review the denial of his request to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that although your response did not conform with the requirements of the Act, you were correct in denying Mr. Castle's request.
OPINION OF THE ATTORNEY GENERAL
Before proceeding to the ultimate issue in this open records appeal, we direct your attention to KRS 61.880(1), which contains specific guidelines for an agency's response to a request under the Act. That statute provides:
Each public agency, upon any request for records made under KRS 61.870 to 61.884, shall determine within three (3) days (excepting Saturdays, Sundays and legal holidays) after the receipt of any such request whether to comply with the request and 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 records 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.
In addition, KRS 61.880(2) requires that a copy of the written response denying inspection be forwarded immediately to the Office of the Attorney General.
Your response to Mr. Castle's request was deficient in several respects. Some thirteen workdays elapsed between the date of the request and the date of the response. Allowing for delays in the mail, your response was nevertheless untimely. Moreover, you failed to cite the specific exception authorizing nondisclosure and to provide an explanation of how the exception applies to the records withheld. Finally, it does not appear that you forwarded a copy of the response to this Office. We urge you to review these provisions to insure that future responses conform to the Open Records Act.
Turning to the issue in this appeal, we find that although you failed to cite the proper exemption, you were correct in denying Mr. Castle's open records request. Mr. Castle acknowledges, in his letter of appeal, that he intends to seek post-conviction relief. Accordingly, his conviction is not final, and the records pertaining to his case are exempt under KRS 61.878(1)(f).
KRS 61.878(1)(f) exempts from disclosure:
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 of 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.
This Office has consistently held that if a criminal case is on appeal, records pertaining to the case are exempt from disclosure under this provision. OAG 76-424; OAG 82-356; OAG 86-47. Thus, in OAG 83-356 we stated that a criminal conviction is not final until it has been upheld by the last appellate court to which the conviction can be taken, citing Cornett v. Judicial Retirement and Removal Commission, Ky., 625 S.W. 564 (1982). Continuing, we observed:
[T]his position is also consistent with the language found in KRS 17.150(2) regarding reports by law enforcement officers. Only when the prosecution is completed or no prosecution is going to be made would the documents covered by KRS 17.150 be accessible to the public if not still permissibly withheld pursuant to KRS 17.150(2)(a)-(d). If a criminal case is on appeal, the possibility exists of a remand for a new trial and for this reason the prosecution is not completed.
OAG 83-356, at p.3.
In addition, OAG 83-356 contains an analysis of the accessibility of public records under the Open Records Act, and their accessibility under the Kentucky Rules of Criminal Procedure. At page 3, we stated:
[Where] the documents requested relate to a criminal investigation and prosecution [they] are, as to the accused, subject to discovery, if at all, under Kentucky Criminal Rules of Procedure. RCr 7.24 and 7.26. We do not believe the general public's right of access to documents and information concerning the criminal action can be greater than the right of access to To the extent the Open Records Act, KRS 61.870, et seq. or KRS 17.150 would be deemed to be in conflict with the Kentucky Criminal Rules, the rules must prevail. See Trent v. Com., Ky. App., 606 S.W.2d 386, 387 (1980). This conclusion is compelled by KRS 447.154 which reads as follows:
'No act creating, repealing, or modifying any statute shall be construed directly, or by implication, to limit the right of the Court of Justice to promulgate rules from time to time or to supersede, modify or amend any rule so promulgated. Nor shall any statute be construed to limit in any manner the power of the Court of Justice to make rules governing practice and procedure in the courts.'
With respect to the tape recordings of 911 telephone calls seeking police assistance, this Office has specifically held that such recordings are exempt from mandatory disclosure under KRS 61.878(1)(a) and (g). OAG 90-117. In that opinion, we concluded that disclosure of a caller's identity is an unwarranted invasion of personal privacy. KRS 61.878(1)(a). Additionally, we stated that the tape recordings of 911 calls are exempt as "correspondence with private individuals" pursuant to KRS 61.878(1)(g). Accordingly, your denial of Mr. Castle's request for access to the tapes was proper.
Mr. Castle had indicated that he intends to seek post-conviction relief, and we therefore conclude that his conviction is not final. It is our opinion that the recordings of his statements to the police were available through the discovery provisions of the Rules of Criminal Procedure, prior to trial. They will again be available to Mr. Castle, and the public generally, unless otherwise properly exempt, once his conviction has been affirmed by the court of last resort to which it is taken. Your denial of his request was therefore proper under the Open Records Law. With respect to the tape recordings of 911 telephone calls, we believe that OAG 90-117 is dispositive and that inspection was properly denied.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. James Lindsay Castle, who may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).