Request By:
[NO REQUESTBY IN ORIGINAL]
Opinion
Opinion By: ALBERT B. CHANDLER III, ATTORNEY GENERAL; James M. Ringo, Assistant Attorney General
Open Records Decision
This matter comes to the Attorney General on appeal from the Kentucky State Police's (KSP) denial of the open records request of John F. Kelley, Jr., Esq., for copies of accident scene photographs and other documents in an investigative file, KSP case # 11-97-0090.
Diane H. Smith, Official Custodian of Records, KSP, responded to Mr. Kelley's request, and advised him that that the case was still considered active by the KSP. In her response, Ms. Smith stated:
The Kentucky Open Records Law provides that all public documents are available for inspection unless exempt pursuant to a particular provision. KRS 61.878(1)(l) exempts records made confidential by separate statute. KRS 17.150(2) exempts law enforcement files or cases that have not been closed. The photographs you seek are part of an open case and are exempt from inspection.
In his letter of appeal, Mr. Kelley indicated that he represented a client involved in a civil action related to the pending criminal case and requested the records for use in the civil case. He stated that the KSP had advised that its investigation had been completed as of 10-16-96, was a non-active case, and had been turned over to the Commonwealth Attorney's office, with a trial date set for November 5, 1997.
Major Gail L. Williams, Legal Officer, KSP, as authorized by KRS 61.880(1) and 40 KAR 1:030, Section 2, responded to the letter of appeal in a letter, dated October 1, 1997. Contrary to Mr. Kelley's information that the investigation was completed and a non-active case, Major Williams stated that the requested records were part of an active, open, law enforcement file and would not be available for inspection until after completion of the pending prosecution.
In additional support of the KSP's denial of Mr. Kelley's request, Major Williams cited KRS 61.878(1)(h).
For the reasons which follow, it is the decision of this office that the Kentucky State Police acted consistently with the Open Records Act in denying access to the requested records from its investigative file.
KRS 61.878(1)(l) states that among the records which are excluded from public inspection are "Public records or information the disclosure of which is prohibited or restricted or otherwise made confidential by enactment of the General Assembly."
KRS 17.150(2) provides in part for the nondisclosure of intelligence and investigative reports maintained by criminal justice agencies, prior to the completion of the prosecution or the decision not to prosecute. 96-ORD-25.
This office has stated in numerous past opinions that a Kentucky State Police case file is not open for inspection while the investigation or prosecution is ongoing. 96-ORD-183; 95-ORD-15; 93-ORD-98; OAG 91-8; and OAG 90-143.
In addition, KRS 61.878(1)(h) authorizes a law enforcement agency to withhold from public inspection its investigative files while the case in question is pending. 96-ORD-22.
It is, therefore, the decision of the Attorney General that the denial by the Kentucky State Police of the request to inspect the records in question was consistent with and supported by the provisions of the Open Records Act, inasmuch as active files of the KSP are not subject to inspection until the completion of the prospective prosecution. KRS 61.878(1)(l), KRS 17.150(2), and KRS 61.878(1)(h). Once the prosecution is completed or a decision to take no legal action has been made, the investigative report will be subject to public inspection unless excluded under another statutorily recognized exception. 96-ORD-76.
A party aggrieved by this decision may appeal it by initiating action in the appropriate circuit court pursuant to KRS 61.880(5) and KRS 61.882. Pursuant to KRS 61.880(3), the Attorney General should be notified of any action in circuit court, but he should not be named as a party in that action or in any subsequent proceeding.