Request By:
Mr. Donald B. Clapp
Vice President for Administration
104 Administration Building
University of Kentucky
Lexington, Kentucky 40506-0032
Opinion
Opinion By: Chris Gorman, Attorney General; Amye B. Majors, Assistant Attorney General
Mr. Dwight L. Allen, an inmate at Western Kentucky Corrections Complex and former student at the University of Kentucky, has appealed to the Attorney General, pursuant to KRS 61.880(2), your denial of his January 10, 1992, request to inspect "documents held by the University of Kentucky Police Department relevant to an investigation of [Mr. Allen]." Mr. Allen was attending the University on a study release program when he was charged with commission of a series of criminal offenses and returned to Eddyville. Although we have not inspected the original request letter, submitted on Mr. Allen's behalf by Assistant Professor Peter L. Mortensen, it is our understanding that the investigation referenced in the letter stems from these incidents which occurred in August or September, 1990.
You denied Mr. Allen's request in a letter dated January 14, 1992, relying on KRS 61.878(1)(a), (f), and (j), and KRS 17.150(2). It was your position that release of the records sought by Mr. Allen:
[W]ould harm the UK Police Department and perhaps the Department of Corrections by revealing the identity of informants not otherwise known or by premature release of information to be used in prospective law enforcement action or in the administrative adjudication undertaken by the Department of Corrections in Mr. Allen's case.
In addition, you invoked KRS 17.150(2), incorporated into the Open Records Act by operation of KRS 61.878(1)(j), indicating that inspection of the records might disclose the name or identity of confidential informants, as well as information of a personal nature the disclosure of which would not tend to advance a wholesome public interest. In a similar vein, you stated that the records contained information of a personal nature, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, citing KRS 61.878(1)(a).
In his letter of appeal to this Office, Mr. Allen explains that he authorized Professor Mortensen to submit an open records request on his behalf, presumably because he was incarcerated and unable to personally inspect the records if released. Citing OAG 79-387 in support of his argument that police incident records are subject to inspection, OAG 85-93 in support of his argument that police investigative files are subject to inspection at the conclusion of the investigation, and OAG 83-427 in support of his argument that KRS 61.884 permits him to inspect any records relating to him, he asks that we review your denial of his request to determine if the University's actions were consistent with the Open Records Act.
In a subsequent letter to this Office, dated January 31, 1992, University counsel, John C. Darsie, reaffirmed the position you took in your original denial letter, and attached a January 30, 1992, letter from Lt. Robert C. Abrams, of the Criminal Investigation Unit of the University of Kentucky Police Department, confirming that Mr. Allen's case is still under investigation. In conversations with the undersigned on March 6, 1992, both Mr. Darsie and Lt. Abrams confirmed that the incidents involving Mr. Allen are under active investigation.
Having reviewed these documents and considered the relevant exemptions to the Open Records Act, we conclude that you properly denied that portion of Mr. Allen's request pertaining to the investigative file, but must release the police incident report or reports relating to the incidents.
OPINION OF THE ATTORNEY GENERAL
This Office has previously stated that case files in the possession of a law enforcement agency are not open to inspection while the case is active. OAG 87-15; OAG 88-27. We see no reason to depart from that view today. It is therefore our opinion that your denial of that portion of Mr. Allen'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). 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 the investigative files of law enforcement agencies are not open to inspection while the case is pending. OAG 83-366. In that opinion, at p. 2, 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. The University of Kentucky Police Department has indicated that 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. Because we believe that the cited exemptions authorize nondisclosure of the investigative files, we will not address the propriety of your invocation of KRS 61.878(1)(a).
Mr. Allen may, however, inspect a copy of the police incident report(s), since the reports are not properly treated as a part of the investigative file. This Office has repeatedly stated that such reports are public records because there is no provision in the Open Records Act exempting them. OAG 77-102; OAG 79-387; OAG 79-582; OAG 80-144; OAG 81-379; OAG 91-12. Accordingly, a copy or copies of the report(s), masking any exempted information, should be made available to the requester.
We are not persuaded by Mr. Allen's argument that he is entitled to inspect all records pertaining to him under authority of KRS 61.884. That statute provides:
Any person shall have access to any public record relating to him or in which he is mentioned by name, upon presentation of appropriate identification, subject to the provisions of KRS 61.878 .
(Emphasis added.) While this provision would appear to grant a general right of access to a requester who is the subject of, or mentioned in, the requested records, this Office has consistently recognized that a requester may be prohibited from inspecting records which pertain to him if those records are exempt under any of the exceptions codified at KRS 61.878(1)(a) through (j). Having invoked KRS 61.878(1)(f) and (j) to authorize nondisclosure of the investigative file pertaining to Mr. Allen, we conclude that the University properly denied that portion of his request, KRS 61.884 notwithstanding.
We conclude that your denial of the request to inspect the records in question was proper inasmuch as the investigation of the incidents involving Mr. Allen is 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 incident report(s) should, however, be made available for his inspection.
As required by statute, a copy of this opinion will be sent to the requesting party, Mr. Dwight L. Allen. Mr. Allen and the University of Kentucky have the right to challenge it by initiating an action for injunctive or declaratory relief in the appropriate circuit court pursuant to KRS 61.880(5).