Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: A. B. CHANDLER III, ATTORNEY GENERAL; AMYE B. MAJORS, ASSISTANT ATTORNEY GENERAL
OPEN RECORDS DECISION
This matter comes to the Attorney General on appeal from the actions of the Kentucky State Police relative to Linda DeRossett's December 13, 1995, request for copies of certain records in the custody of the State Police. On December 13, 1995, Ms. DeRossett requested access to:
All records, including, but not limited to, the report relating to my arrest, indictment, and conviction on charges of wanton endangerment.
On behalf of the Kentucky State Police, Diane Smith, Official Custodian of Records, responded to Ms. DeRossett's request in a letter dated December 13, 1995. Relying on KRS 61.878(1)(l) and KRS 17.150(2), Ms. Smith denied the request, explaining that the records she seeks are part of an open case, and therefore exempt. On January 18, 1996, Ms. Smith confirmed that the case remains open.
In her letter of appeal, Ms. DeRossett asks that we review the State Police's denial of her request to determine if their actions were consistent with the Kentucky Open Records Act. For the reasons set forth below, we conclude that the Kentucky State Police's response, although procedurally deficient, was substantively correct.
We begin by noting that the State Police's response was inconsistent with the procedural requirements of the Open Records Act. KRS 61.880(1) 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 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.
The State Police's response to Ms. DeRossett's December 13 request was issued on January 2, approximately twelve (12) days after the statutory deadline. We urge the State Police to review KRS 61.880(1) to insure that future responses conform to the Open Records Act.
Turning to the substantive issue in this appeal, we find that the Kentucky State Police properly denied Ms. DeRossett's request. This office has previously stated that investigative reports in the custody 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 reason to depart from this view today. It is therefore our opinion that the denial of Ms. DeRossett's request was proper.
KRS 61.878(1)(l) 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 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).
Although the State Police did not invoke KRS 61.878(1)(h), we have also recognized that their investigative files are not open to inspection while the case is pending. See, e.g., 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)[(h)] 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 documents which reveal the identity of a confidential informant, information of a personal nature, and information which may endanger the life or physical safety 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, such reports are subject to public inspection unless the documents contained therein it are exempt under KRS 17.150(2) or another exception to the Open Records Act.
We conclude that Ms. Smith's denial of Ms. DeRossett's request to inspect the disputed records was consistent with the Open Records Act inasmuch as the State Police investigation has not been concluded. Although we concur with Ms. DeRossett in her view that a public agency cannot indefinitely postpone the release of records by labelling an investigation ongoing, this office has recognized that it is "within the sound discretion of the . . . agency to decide when a case is active, merely inactive, or finally closed." OAG 90-143, p. 4. We have expressed our reluctance to determine "how long the [agency] could consider a case inactive before finally declaring it closed." OAG 86-80, p. 4. It is not appropriate for this office to substitute its judgment for that of the State Police on this issue. Once the investigation is completed or a determination not to prosecute is made, the investigative report will be subject to inspection unless exempt under another recognized exception.
Ms. DeRossett may challenge this decision by initiating action in the appropriate circuit court. Pursuant to KRS 61.880(3), the Attorney General must be notified of any action in circuit court but shall not be named as a party in that action or in any subsequent proceedings.