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. Eric Gregory, police reporter for the Lexington Herald-Leader , has appealed to the Attorney General pursuant to KRS 61.880 your denial of his request to inspect the Kentucky State Police's investigative file of the murder of Barbara Murphy in February, 1985.
In response to Mr. Gregory's request to review the 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 remains open in a conversation with the undersigned which took place on May 23, 1991. You explained that although Ms. Murphy's husband, Danny Alan Murphy, pled guilty to first-degree manslaughter in early May, 1991, he will not be sentenced until July, 1991. In the interim, the Kentucky State Police must treat the case as open.
In his letter of appeal to this Office, Mr. Gregory suggests that since Mr. Murphy has entered a guilty plea, thereby waiving his right of appeal, the case should be closed. He asks that we review your denial to determine if your actions were consistent with the Open Records Act. For the reasons set forth below, we conclude that you properly denied Mr. Gregory's request.
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; OAG 91-50. We see no reasons to depart from that view today. It is therefore our opinion that your denial of Mr. Gregory'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 prosecution or the decision not to prosecute at KRS 17.150(2).
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 indanger [sic] the life of a police officer. OAG 76-124; KRS 17.150(2).
OAG 83-366, at p.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.
Until a plea of guilty has been formally accepted and incorporated in a final judgment or order, a defendant is free to seek to withdraw his plea, and the court is free to accept or reject it.
Jewell v. Commonwealth, Ky., 725 S.W.2d 593 (1987);
Maxwell v. Commonwealth, Ky., 602 S.W.2d 169 (1980);
Allen v. Walter, Ky., 534 S.W.2d 453 (1976);
Anderson v. Commonwealth, Ky., 507 S.W.2d 187 (1974). The State Police may therefore properly treat this case as active since the defendant has not been sentenced and the "enforcement action" is not "complete."
We conclude that your denial of Mr. Gregory's request to inspect the records in question was consistent with the Open Records Act inasmuch as the prosecution has not been completed. Once the prosecution is concluded, the investigative file will be subject to inspection unless exempt under another recognized exception.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Eric Gregory, who may challenge it in the appropriate circuit court pursuant to KRS 61.880(5).